268 
S58d 


Schroeder 


•Due  Process  of  Law' 


f^ 


"DUE  PROCESS  OF  LAW"  : 

IN    Ui-:LATI"V    T  ■ 

STATUTORY  UNCERTAINTY 

AND 

constructivp:  offences, 

GIVING  MUCH  NEEDED  ENLIGJ/TENMENT 

TO  LEGISLATORS,   BAR  AND  BENCH 

THEODORE  SCHROEDER, 

6^rTrjST-+'trTT-Nn?:Tii  ^CTRET, 

New  Youk  City. 

"  Ubi  jiis  inccrtum  ibi  jus  nulluni.''                                    ► 

PUBLISHED    BY    TMK                                                                        * 

FREE    SPEECH    LEAGUE,                            \ 

120  Lexington  Avenue, 

Nkw  York  City. 

Copyright  by  the  Author,  /qoS.                                            , 

"The  manna  of  liberty  must  be  gath- 
ered each  day,  or  it  is  rotten." 

"Only  by  unintermitted  agitation  can 
a  people  be  kept  sufficiently  awake  to 
principle  not  to  let  liberty  be  smothered 
in  material  prosperity." 

"  Republics  exist  only  on  the  tenure  of 
being  agitated."— (Wendell  Phillips.) 

"Illegitimate  and  unconstitutional 
practices  get  their  first  footing  in  this 
way,  namely,  by  silent  approaches  and 
slight  deviations  from  legal  modes  of 
procedure.  This  can  only  be  obviated 
by  adhering  to  the  rule  that  constitu- 
tional provisions  for  the  security  of  per- 
son and  property  should  be  liberally 
construed.  A  close  and  literal  construc- 
tion deprives  them  of  half  their  efficacy, 
and  leads  to  a  gradual  depreciation  of 
the  rightas  if  it  consisted  more  in  sound 
than  in  substance."^— (Boyd  vs.  U.  S.,  116 
U-  S.,  616-635. -/-i-y  "iLj-r^,  7v^'.» 


"DUE  PROCESS  OF  LAW" 


IN   RELATION   TO 


STATUTORY  UNCERTAINTY 


CONSTRUCTIVE  OFEENCES, 

GIVING  MUCH  NEEDED  ENLIGHTENMENT 

TO  LEGISLATORS,  BAR  AND  BENCH 


THEODORE  SCHROEDER, 

63  East  Fifty-ninth  Street, 
New  York  City. 


"  Ubi  jus  mccrtian  ibijus  nullum.'' 


PUBLISHED    BY    THE 

FREE    SPEECH    LEAGUE, 

120  Lexington  Avenue, 

New  York  City. 

Copyright  by  the  Author,  igoS. 


"The  manna  of  liberty  must  be  gath- 
ered each  day,  or  it  is  rotten."- 

"Only  by  unintermitted  agitation  can 
a  people  be  kept  sufficiently  awake  to 
principle  not  to  let  liberty  be  smothered 
in  material  prosperity." 

"  Republics  exist  only  on  the  tenure  of 
being  agitated."— (Wendell  Phillips.) 

"Illegitimate  and  unconstitutional 
practices  get  their  first  footing  in  this 
way,  namely,  by  silent  approaches  and 
slight  deviations  from  legal  modes  of 
procedure.  This  can  only  be  obviated 
by  adhering  to  the  rule  that  constitu- 
tional provisions  for  the  security  of  per- 
son and  property  should  be  liberally 
construed.  A  close  and  literal  construc- 
tion deprives  them  of  half  their  efficacy, 
and  leads  to  a  gradual  depreciation  of 
the  rightas  if  it  consisted  more  in  sound 
than  in  substance."—  Boyd  vs.  U.  S.,  1  1  6 
U.  S.,  616-635. 


CONTENTS. 


I.     TO  THE  READER, 5 

II.  THE  SCIENTIFIC  ASPECT  OF  "DUE  PRO- 
CESS OF  LAW"  AND  CONSTRUCTIVE 
OFFENSES.  Revised  and  republished  from 
TAe  A)7ieyican  Law  Revieiv,  June,  190S,       .         ,         7 

III.  STATUTORY    UNCERTAINTY    AND    "DUE 

PROCESS  OF  LAW."     Republished  from  The 
Central  Law  Journal,  for  Jan.  3rd,  1908,  19 

IV.  THE   HISTORICAL   INTERPRETATION    OF 

"  LAW."     Republished  from    The  Albany  Law 
Journal,  for  April,  1908,       ....  -30 

V.     STATUTORY    CERTAINTY    REQUIRED    BY 

MODERN   DECISIONS,        ....  49 

VI.     SOME  APPLICATIONS, 68 


1 0.?9r?89 


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in  2008  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/dueprocessoflawiOOschr 


TO  Till':  RICADICR: 

Some  time  ago  a  lawyer  friend  of  mine  wrote  these 
words:  "The  judicial  pendulum  is  swinging  a  long  way  just 
now  in  the  matter  of  the  construction  of  offenses  from  in- 
definite and  uncertain  language  employed  in  the  statutes. 
Possibly  after  a  while  common  sense  and  reason  will  resume 
control." 

I  am  exerting  myself  toward  that  better  time  when  reason 
will  resume  control,  and  when  even  the  judicial  will  shall 
again  be  subjected  to  "the  law"  which  always  destroys  arbi- 
trary power  by  being  general,  uniform,  equal,  fixed  and  cer- 
tain. This  pamphlet  is  but  the  fore-runner  of  a  more  elab- 
orate argument  which  I  have  in  contemplation. 

I  especially  request  that  lawyers  will  be  kind  enough  to 
send  me  any  suggestion  or  citation  which  may  bear  upon  the 
questions  I  am  herein  discussing.    Ever  for 
Truth,  Justice  and  Liberty. 

THEODORE  SCHROEDER, 

6;^  E.  59th  St.,  N.  Y.  City. 
July  ist,  1908. 


THE   SCIENTIFIC   ASPECT   OF   "LAW." 

By  special  permission  revised  and  republished  from  the 
American  Law  Reviezv,   for  June,   1908. 

In  all  the  annals  of  the  past,  one  of  the  most  conspicuous 
features  in  the  struggle  for  liberty  has  been  the  fight  against 
constructive  crimes,  which  includes  punishment  for  imaginary 
or  psychologic  injuries.  The  condition  of  England,  before  the 
days  of  the  revolution,  is  thus  described  by  Edward  Living- 
ston. Secretary  of  State  under  President  Jackson,  and  reputed 
to  be  "the  greatest  lawyer  of  his  time" : 

"The  statute  gave  the  texts,  and  the  tribunals  wrote  the 
commentary  in  letters  of  blood,  and  extended  its  penalties  by 
the  creation  of  constructive  offenses.  The  vague  and  some- 
times unintelligible  language  employed  in  the  penal  statutes, 
gave  a  seeming  color  of  necessity  to  this  assumption  of  power, 
and  the  English  nation  have  submitted  to  the  legislation  of  its 
courts,  and  seen  their  fellow-subjects  hanged  for  constructive 
treason,  and  roasted  alive  for  constructive  felonies,  quartered 
for  constructive  heresies,  with  a  patience  that  would  be  as- 
tonishing, '  even  if  their  written  law  had  sanctioned  the 
butchery." 

It  appears,  historically,  that  those  baneful  constructive 
crimes  developed  from  several  specific  causes.  A  union  of 
church  and  state  resulted  in  punishing  the  mere  constructive 
injury  of  heretical  speech ;  the  witchcraft  superstition  resulted 
in  punishing  the  mere  constructive  cause  of  material  injuries; 
the  abridgement  of  the  freedom  of  speech  and  of  the  press, 
also  punished  psychologic  crimes  based  upon  mere  constructive 
injuries;  these,  with  the  evils  of  judicial  legislation  in  defining 
crimes,  were  all  of  the  sources  for  those  evils  which  are  so 
often  denounced  under  the  name  of  constructive  offenses.  Our 
ancestors  saw  the  evils  and  their  practical  concrete  origins, 
but  apparently  did  not  concern  themselves  with  the  generaliza- 
tion of  the  ultimate  tests  by  which  to  determine  the  essence  of 


all  constructive  offenses.  Notwithstanding  this,  they  very 
effectively  barred  the  door  against  any  recurrence  of  such 
evils,  if  we  will  but  construe  our  constitution  in  the  light  of 
a  truly  scientific  conception  of  tJie  law,  such  as  will  be  formu- 
lated hereinafter. 

To  obviate  the  recurrence  to  punishment  of  mere  psycho- 
logic or  constructive  injuries  our  forefathers  prohibited  the 
union  of  church  and  state,  and  the  abridgement  of  freedom  of 
speech  and  of  the  press.  To  the  same  end,  and  to  preclude 
judicial  legislation  and  its  arbitrary  tyrannies,  they  separated 
the  functions  of  the  legislative  and  judicial  branches  of  our 
government,  and  then,  as  including  all  these  and  more  be- 
sides, they  made  the  more  general  and  comprehensive  guar- 
antee that  no  man  should  be  deprived  of  life,  liberty  or  prop- 
erty without  due  process  of  law. 

In  spite  of  all  these  safeguards,  and  innumerable  judicial 
denunciations  of  the  punishment  of  constructive  offenses,  it 
seems  to  me  that  all  about  me  I  discover  such  penalties  being 
inflicted,  without  its  inducing  much  of  a  protest.  In  seeking 
for  an  explanation,  I  have  been  led  to  the  conclusion  that  it  is 
to  be  found  in  the  fact  that  in  reducing  the  lawyer's  calling 
from  a  profession  to  a  business,  we  have  put  so  high  a  pre- 
mium upon  his  commercial  acumen,  that  we  have  reduced  the 
lawyer  from  a  scientist  of  the  law  to  a  business  executive. 
The  result  is  that  not  one  lawyer  in  ten  thousand  has  a  truly 
scientific  conception  of  the  laiv,  or  of  its  essential  nature.  As 
best  I  can  I  intend  to  point  out  the  nature  of  "law"  as  I 
believe  the  few  intelligent  lawyers  view  it,  and  then  I  will 
endeavor  to  deduce  therefrom,  criteria  for  determining  what 
are  constructive  offenses,  especially  in  their  relation  to  "due 
process  of  Jaw." 

THE  LAW  AS  A  SCIENCE. 

It  is  often  said,  let  us  hope  not  always  in  sarcasm,  that  the 
law  is  a  science.  I  wonder  if  those  who  speak  these  words 
really  know  what  they  signify.  I  shall  undertake,  I  fear  in 
an  inadequate  way,  to  state  what  such  words  mean  to  me. 
Men  have  a  scientific  conception  of  the  law,  only  when  they 
iee  legal  truth  as  a  formulated  expression  of  the  natural  law 
3f  our  social  organism.  To  conceive  this  as  a  "law"  we  must 
understand  it,  not  as  a  mere  acquaintance  wath,  or  memory- 

8 


knowledge  of,  the  verbally  uttered  decision  in  this  case  or 
that,  or  under  these  or  other  s])ecial  states  of  fact,  but  we 
must  understand  these  special  legal  truths  in  all  their  neces- 
sary relations  to  one  another,  as  constituent  elements  in  the 
induction  leading  to  the  most  comprehensive  generalization ; 
and  again,  all  must  be  seen  according  to  their  own  necessary 
logical  classifications  as  mere  special  examples  of  the  broad- 
est rational  generalization,  of  legal  truth  to  which  all  concrete 
instances  must  be  referred,  and  from  which  all  sjiccific  deci- 
sions must  be  made,  by  the  process  of  deduction.  It  is  not 
enough  that  we  discover  some  more  or  less  crude  analogies 
between  these  facts  and  those,  and  thus  by  an  empirical  in- 
duction make  the  decision  in  that  case  fit  this ;  on  the  con- 
trary the  law  has  not  reached  the  dignity  of  a  science  until 
we  see  the  relation  of  all  its  special  cases  to  those  general 
principles  which  are  decisive  of  all  causes  belonging  to  the 
same  general  class.  Let  me  make  a  quotation  by  way  of  illus- 
tration, "During  its  early  stages,  planetary  astronomy 
consisted  of  nothing  more  than  accumulated  observations  re- 
specting the  positions  and  motions  of  the  sun  and  planets ; 
from  which  accumulated  observations  it  came  by  and  by  to  be 
empirically  predicted,  with  an  approach  of  truth,  that  certain 
of  the  heavenly  bodies  would  have  certain  positions  at  certain 
times.  But  the  modern  science  of  planetary  astronomy  con- 
sists of  deduction  from  the  law  of  gravitation — deductions 
showing  why  the  celestial  bodies  necessarily  occupy  certain 
places  at  certain  times." 

To  have  accumulated  a  knowledge  of  the  kind  of  judg- 
ments entered  in  a  large  number  of  cases  is  not  to  know  "law" 
— nor  to  be  a  scientist  of  the  law.  To  make  empirical  induc- 
tions from  such  accumulated  knowledge  may  enable  us  to  de- 
cide cases  with  an  approach  of  truth  and  justice,  but  the  result 
is  not  "law"  in  the  only  sense  in  which  a  scientist  of  the  law 
can  use  that  word.  The  lawyer,  whose  intellectual  attainments 
are  such  as  to  make  him  a  scientist  of  the  law,  must  have 
adopted  the  scientific  method  for  the  ascertainment  of  legal 
truth.  The  scientific  method  requires  that  his  empirical  gen- 
eralizations shall  have  been  included  in  a  rational  generaliza- 
tion, which  is  the  formulated  statement  of  the  laic,  because  it 
determines  conclusively  from  the  nature  of  things,  hozv  and 
Zi'hy  certain  judgments  must  be  so  and  thus,  the  result  always 
being  derived  by  deductions  from  the  ultimate  rational  gener- 


alizations,  by  which  process  the  lazv  thus  determines  the  deci- 
sion in  every  particular  case,  which  lazv  must  always  be  con- 
formed to,  irrespective  of  a  direct  estimate  of  the  beneficence 
of  its  result  in  any  particular  instance.  It  is  this,  and  this 
alone,  which  in  my  judgment  makes  the  law  a  science,  and 
though  I  should  be  convinced  that  not  many  lawyers  are  legal 
scientists,  still  I  would  not  despair.  If  our  conception  of  the 
law  falls  short  of  being  a  scientific  one,  it  can  only  be  because 
the  judges  and  legislators  whose  duty  it  is  to  formulate 
verbal  statements  of  the  law,  have  not  attained  the  intellectual 
stature  of  scientists. 

If  "the  lazv"  is  a  system  of  rational  generalizations  to 
wdiich  all  specific  controversies  must  be  referred,  and  by  de- 
ductions from  whose  uniform  standards  all  controversies  must 
be  conclusively  decided,  then  it  follows  that  if  no  such  certain 
and  uniform  controlling  standard  is  prescribed  by  the  legisla- 
tive enactment,  and  where  because  of  that  fact  (especially  in 
criminal  cases)  courts  are  left  free  to  pronounce  their  judg- 
ments (of  guilt  or  innocence)  by  empirical  inductions  based 
upon  their  differing  personal  experience,  then,  under  such  cir- 
cumstances I  say,  courts  do  not  declare,  and  are  not  governed 
by  "the  lazv,"  but  themselves  are  unconsciously  seeking  by 
their  judicial  legislation  to  create  law,  and  enforce  their  owm 
arbitrary  edicts ;  they  are  not  enforcing  or  maintaining  natural 
law  according  to  the  formulated  precepts  of  it,  made  by  the 
legislative  power,  but  instead  they  become  the  executioners  of 
their  own  lawless  wills.  All  this  is  but  another  way  of  vindi- 
cating the  maxim  "where  the  law  is  uncertain  there  is  no  law^" 
From  the  foregoing  speculations  it  already  appears  that  the 
lazv  is  something  outside  of  and  independent  of  the  judicial 
mind.  Let  us  now  make  further  inquiry  as  to  the  nature  of 
/aw,  from  the  scientific  viewpoint. 


ON  THE  NATURE  OF  THE  LAW. 


If  we  would  know  what  is  to  be  understood  by  a  con- 
structive l)reach  of  the  law  we  must  first  achieve  a  very 
definite  conception  of  the  nature  of  lazv.  After  that  w^e 
can  better  discern  all  the  conditions  which  might  constitute  its 
constructive  breach,  as  distinguished  from  its  actual  infraction. 

Just  as  the  laws  of  mathematics  are  not  created  by  the 
mathematicians,  nor  the  ])hysical  laws  by  the  physicists,  who 


10 


discover  or  make  formal  statements  of  them,  as  also  the  laws 
of  our  thinking  are  not  ])r()(lucts  of  thinking,  so  the  laws — 
the  real  lazes — of  a  state  are  never  products  of  judicial  cerebra- 
tion. All  laii's  are  prc-suppositions  which  alone  make  our 
thinking  about  them,  and  statement  of  them,  possible.  The 
province  of  the  court  is  to  discover,  declare  and  enforce,  the 
prior  existing  Imv,  and  never  to  construct  or  create  law.  To 
declare  the  law  means  only  to  formulate  a  verbal  statement  of 
it  as  it  exists,  prior  to,  and  apart  from  the  judicial  formula, 
and  outside  of  the  judicial  mind.  Thus  state  laze,  in  its  proper 
and  technical  sense,  is  but  natural  justice,  as  we  find  it  in  the 
very  nature  of  our  inter-human  relations,  and  the  formulated 
statements  of  such  artificial  legislatively-created  rules  of  con- 
duct, as  the  law-making  power  may  properly  enact,  btit  only 
for  the  security  and  realization  of  natural  justice  among  sen- 
tient being.  These  considerations  it  seems  to  me  are  the  rea- 
sons underlying  the  following  language  from  the  Supreme 
Court  of  the  United  States :  "In  the  ordinary  use  of  language 
it  will  hardly  be  contended  that  the  decisions  of  courts  con- 
stitute law.  They  are  at  most,  only  evidence  of  what  the  laws 
are ;  and  are  not  of  themselves  laws." 

Swift  V.  Tyson,  i6  Peters  i8. 

ON   THE  REQUIREMENT  OF    NATURAL   JUSTICE. 

The  lazvs  of  natural  justice  are  in  the  nature  of  things  and 
exist  wholly  independent  of  our  knowledge  of  them,  and  would 
still  exist,  though  every  verbally  expressed  statement  of  them 
should  be  destroyed.  It  follows  that  judicial  opinions  and 
statutes  should  do  no  more  than  merely  to  declare  our  highest 
conception,  of  the  most  refined  sense  of  natural  justice  to 
which  humanity  has  attained,  and  to  provide  for  its  practical 
realization.  If  it  does  either  less  or  more  than  this,  it  is  a 
misconception  of  the  laze,  and  its  enforcement  should  be  de- 
clared beyond  the  power  of  any  court.  To  declare  otherwise 
would  be  to  assert  that  our  state  machinery  may  be  used  de- 
liberately and  consciously  to  accomplish  a  wrong — to  violate 
natural  justice. 

In  accordance  with  the  foregoing  conception  of  law  as  ex- 
isting in  the  nature  of  things,  or  as  being  -a  human  regulation 
conducing  to  the  practical  maintenance  of  natural  justice,  it 

II 


follows  that  juridical  systems  must  always  conform  to  right 
reason,  because  the  essence  of  right  reason  consist  in  the  very 
fact  of  a  conformity  of  our  thinking,  with  the  natural  order  of 
things  outside  our  minds.  More  technically  expressed  we  say 
legal  truth,  which  is  but  a  subordinate  department  of  truth  as 
a  whole,  is  "the  exact  correspondence  between  the  subjective 
order  of  our  [the  judge's]  conception  and  the  objective  order 
of  the  relation  among  things."  (John  Fiske.)  If  then  a  true 
conception  of  law  in  civil  matters  is  one  which  is  an  exact 
correspondence  with  natural  justice,  as  this  exists  in  the  very 
nature  of  things,  and  as  a  mere  part  of  the  natural  law  of  our 
social  organism,  then  our  formulated  statements  of  the  law 
must  always  conform  to  right  reason,  because  such  conformity 
is  the  very  essence  of  a  true  conception  of  tlie  lazv.  Thus  un- 
derstood it  is  hardly  possible  to  disagree  with  Blackstone  and 
those  authorities  following  him,  which  say:  "Statutes  which 
violate  the  plain  and  obvious  principles  of  common  right  and 
common  reason  are  null  and  void." 

Bennett  v.  Bogge,  Fed.  Case,  No.  1319. 
Morrison  v.  Barksdale,  i  Harp.  (So.  Car.),  loi. 
Taylor  v.  Porter,  4  Hill,  140  (N.  Y.,  1843). 

Upon  the  supremacy  of  natural  law,  as  the  original  of  all 
our  formulated  statements  of  law,  Montesquieu  wrote  this: 
"How  inequitous  the  law  which,  to  preserve  a  purity  of  mor- 
als, overturns  nature,  the  origin  and  the  source  of  all 
morality." 

"The  Spirit  of  the  Laws,"  Aldine  edition,  vol.  2,  p.  556. 

Later  Blackstone  expressed  himself  about  the  supremacy 
of  natural  law  in  these  words :  "No  human  laws  are  of  any 
validity  if  contrary  to  the  law  of  nature ;  and  such  of  them  as 
are  valid  derive  all  their  force  and  all  their  authority  from 
this  original." 

Blackstone's  Commentaries. 

Statutes  have  been  held  unconstitutional  merely  because 
"manifestly  contrary  to  the  first  principles  of  civ*^  liberty  and 
natural  justice." 

Holden  v.  James,  ii  Mass,  405. 

Durkee  v.  City  of  Janesville,  28  Wise,  465  and  cases. 

Calder  v.  Bull',  3  Dallas,  387-388.  (U.  S.) 

"Reason  and  the  nature  of  things  which  will  impose  laws 
even  upon  the  Diety." 

Fletcher  v.  Peck,  6  Cranch,  143,  see  dissenting  opinion. 

Wilkinson  v.  Leland,  2  Peters,  1-658. 

Terrctt  v.  Taylor,  9  Crauch,  50-52. 

12 


1  am  well  aware  that  many  courts,  without  having  weighed 
the  foregoing  considerations  as  to  the  nature  of  hnv,  have  held 
otherwise,  but  such  courts  repudiate  and  contradict  the  ex- 
pressly declared  jjurpose  of  our  constitution  and  so  discredit 
themselves. 

There  is  little  excuse  for  the  existetice  of  government  ex- 
cept as  aft'ording  a  method  for  the  authoritative  formulation  of 
our  best  conception  of  natural  rules  of  justice  and  promoting 
their  realization  in  practice.  Although  the  preambles  of  our 
Federal,  and  perhaps  most  of  our  State  constitutions,  pro- 
claim their  purpose  "to  establish  justice  ****=<=  and  secure 
the  blessing  of  liberty,"  and  though  to  the  end  of  establishing 
justice  "due  process  of  law"  was  made  mandatory,  yet  judges, 
guiltless  of  the  .scientific  conception  of  the  law,  have  not  hesi- 
tated to  contradict  the  constitutionally  avowed  purpose  of  gov- 
ernment, and  of  "due  process  of  law,"  by  declaring  that  these 
words  do  "not  mean  merciful  nor  even  just  laws." 
Eames  v.  Savage,  yy  Me.,  212. 

Judges  capable  of  saying  that  a  state  may  violate  the 
obvious  demands  of  natural  justice  (as  distinguished  from  an 
enforcement  of  laws  deciding  disputed  problems  of  justice), 
discredit  the  state,  and  invite  for  themselves  contempt.  To 
uphold  many  such  laws  as  constitutional  would  justify  and 
might  necessitate  a  revolution  by  violence,  as  a  means  of  re- 
storing liberty  and  justice. 

If,  in  a  criminal  case,  a  court  should  undertake  to  enforce 
upon  any  person,  a  judgment  which  was  not  in  the  further- 
ance of  natural  justice  and  which  did  not  conform  to  general, 
uniform  and  certain  rules  of  conduct,  having  an  exact,  ver- 
bally formulated  existence  outside  the  mere  arbitrary  will  of 
the  court,  and  well  known,  or  easily  accessible  to  all,  prior  to 
the  acts  constituting  the  offence  then  before  the  court,  I  say, 
if  a  court  should  undertake  to  enforce  anything  different  from 
such  a  law,  it  would  not  be  enforcing  the  lazv  at  all,  and  to 
submit  to  it  would  be  submission  to  a  government  by  the  arbi- 
trary and  despotic  will  of  a  judiciary,  unrestrained  by  subjec- 
tion to  the  law,  and  not  in  any  sense  would  this  be  a  govern- 
ment by  courts  according  to  laiv.  Criminal  punishment  under 
such  circumstances  would  be  punishment  for  constructive 
crimes. 

If  the  state,  in  violation  of  the  foregoing  injunctions, 
should  be  permitted  to  penalize  an  act  which  is  not  an  essen- 

13 


tial  element  in  doing  actual  violence  to  natural  justice,  the 
statute  could  not  be  one  enacted  in  the  furtherance  of  the 
governmental  purposes  to  establish  justice  and  secure  the 
blessings  of  liberty,  and  therefore  such  a  law  could  not  be 
within  the  legitimate  province  of  such  a  government  as  we 
profess  to  maintain.  Furthermore  such  a  statute,  penalizing 
an  act  which  is  not  an  essential  element  in  violating  natural 
justice,  must  in  itself  be  the  creation  of  an  injustice — that  is, 
it  must  in  itself  and  from  its  very  nature  authorize  an  invasion 
of  liberty,  unwarranted  by  any  necessity  for  defending  natural 
justice  or  maintaining  equality  of  liberty;  and  therefore  the 
enforcement  of  such  a  statute  would  be  the  deprivation  of 
liberty  without  due  process  of  law,  as  we  now  understand 
law  in  the  light  of  our  foregoing  study  of  its  nature.  I  con- 
clude that  every  such  statute  as  I  have  last  hereinabove  de- 
scribed is  an  attempt  to  punish  for  a  constructive  ofifence — is  a 
violation  of  our  constitutional  guarantee  of  Due  Process  of 
Law.  With  so  much  by  way  of  preliminary  discussion  we  may 
proceed  to  classify  constructive  offenses  under  several  heads, 
indicative  of  the  different  sources  from  which  comes  the  ten- 
dency toward  the  construction  of  offenses  and  the  wrongful 
infliction  of  penalties  based  upon  the  creation. 

MATERIAL  INJURY  ESSENTIAL  TO  CRIME. 

It  follows  from  the  fact  that  human  justice  can  deal  only 
with  material  factors,  that  an  offense  to  be  real,  and  not 
merely  constructive,  must  be  conditioned  upon  a  demonstrable 
and  ascertained  material  injury,  or  an  imminent  danger  of 
such,  the  existence  of  which  danger  must  be  determined  by 
the  known  laws  of  the  physical  universe.  Our  Constitution, 
both  in  its  guarantee  of  freedom  of  speech  and  press,  and 
in  its  guarantee  of  due  process  of  lazv  (as  we  now  under- 
stand the  lazv,  according  to  the  foregoing  anaylsis)  precludes 
the  construction  of  mere  psychologic  crimes.  The  offenses 
which  are  based  only  upon  ideas,  expressed  or  otherwise,  such 
as  constructive  treason,  witchcraft  and  heresy,  either  religious 
or  ethical,  and  all  kindred  psychologic,  or  other  constructive  in- 
juries, are  prohibited,  because  the  very  nature  of  the  law, 
whose  supremacy  and  processes  our  constitution  guarantees,  is 
such  that  American  legislators  cannot  be  permitted  to  predicate 
crime  upon  mere  psychologic  factors.     Manifestly  this  does 

14 


not  preclude  punishment  when  these  psychologic  factors  have 
ceased  to  be  merely  such,  by  having  resulted  in  actual  material 
injury  as  distinguished  from  constructive  and  speculative  in- 
jury; for  example,  it  does  not  preclude  punishment  in  cases 
of  personal  libel,  or  where  the  uttered  opinion  has  resulted  in 
crime,  under  such  circumstances  as  to  make  one  an  accessory 
before  the  fact,  or  such  as  proves  a  conspiracy  to  secure  its 
commission.  Under  such  circumstances  no  man  is  punished 
for  a  mere  speech  as  such,  nor  for  its  psychologic  eflfect  merely 
as  a  psychologic  effect,  but  he  is  punished  for  his  practical 
contribution  toward  the  actually  realized  ascertained  material 
injury,  the  speech  being  only  the  evidence  of  his  complicity  in 
the  achievement  of  the  resultant  invasion  and  material  damage. 
I  have  spent  so  much  space  in  efforts  to  clarify  the  vision 
as  to  this  phase  of  constructive  crimes,  because  it  seems  to  me 
to  be  very  little  understood  and  very  often  disregarded.  In  its 
practical  application,  no  doubt,  the  tests  which  I  have  pre- 
scribed will  occasionally  run  counter  to  certain  moral  senti- 
mentalizing which,  however,  we  can  afford  to  dispense  with, 
and  which  our  legislators  will  refuse  to  regard  seriously  when 
we  get  an  enlightened  view  of  liberty.  For  this  class  of  con- 
structive crimes  the  responsibility  rests  primarily  with  the 
legislative  department.  For  the  others,  now  to  be  discussed, 
the  courts  are  chiefly  to  blame, 

JUDICIAL    LEGISLATION    UNDER    PRETENCE    OF    INTERPRETATION. 

The  next  class  of  constructive  offenses  is  a  little  better  un- 
derstood. Here  the  act  under  investigation  is  one  which,  un- 
der, the  former  tests,  may  properly  be  penalized,  but  is  not 
within  the  plain  letter  of  the  prohibitive  statute:  first,  because 
the  statutory  tests  of  criminality,  though  certain  in  meaning 
and  covering  acts  of  the  same  general  character,  do  not  include 
the  conduct  under  investigation ;  o'r  second,  because  the  lan- 
guage of  the  statute  is  ambiguous  and  the  act  under  investiga- 
tion is  not  clearly  within  every  possible  meaning  of  the  words 
descriptive  of  the  crime ;  or  third,  because  the  statute  is  uncer- 
tain in  that  it  prescribes  no  certain  and  decisive  tests  of  crim- 
inality thus  making  it  necessary,  if  the  statute  is  to  be  enforced 
at  all.  judicially  to  interpolate  such  tests.  These  are  the  three 
classes  of  judicial  legislation  which  is  prohibited  in  criminal 
cases  by  the  guarantee  of  "Due  Process  of  Law." 

15 


THE  JUDICIAL    F.XLARGEMEXT   OF   THE   STATUTE. 

In  the  first  of  these  instances  a  judicial  enlargement  of  the 
field  plainly  marked  out  by  the  statute  is  so  universally  recog- 
nized as  improper,  because  judicial  legislation  and  therefore 
within  the  prohibited  constructive  offences,  as  to  need  no  ar- 
gumentative support.  Indeed,  all  our  judicial  rules  for  the 
strict  construction  of  criminal  statutes  are  founded  upon  the 
necessity  of  prohibiting  judges  from  creating  law. 

AMBIGUOUS   STATUTES   JUDICIALLY   AMENDED. 

The  second  case,  that  of  ambiguous  penal  statutes,  oftener 
seduces  judges  into  an  abuse  of  their  power  by  a  misapplication 
of  rules  of  construction.  Where  the  words  descriptive  of  a 
crime  are  ambiguous  (open  to  several  interpretations,  some  or 
all  of  which  are  very  certain  and  definite  as  criteria  of  guilt), 
it  is  erroneously  assumed  by  many  courts  that  it  is  an  exercise 
of  the  judicial  function  of  statutory  interpretation  to  select 
that  one  among  the  possible  meanings  of  the  statute  which  is 
to  be  enforced.  I  do  not  conceive  it  so.  The  judicially  selected 
meaning  may  not  be  the  one  which  the  legislature  intended 
to  enact.  Certainly  it  has  not  received  the  specific  sanction  of 
the  legislative  branch  of  the  government,  any  more  than  every 
other  possible  interpretation,  and  the  only  conduct  which  can 
with  certainty  be  known  to  be  within  the  legislative  prohibition 
(that  is  within  the  lazv)  are  those  acts  which  are  clearly  within 
every  possible  meaning  of  the  statute.  If  this  rule  has  not  been 
always  observed  in  the  matter  of  ambiguous  statutes  .it  is 
because  judges  have  not  seen  clearly  the  true  relation  between 
such  ambiguity  and  the  lazv. 

UNCERTAIX    STATUTES    AND    JUDICIAL    LEGISLATION. 

In  the  third  case,  where  definitive  description  of  the  crime 
is  wholly  wanting,  (as  distinguished  from  ambiguity  in  the 
definition)  because  there  is  an  absence  of  any  certain,  clear, 
universal,  and  decisive  tests  of  criminality,  we  have  a  case  for 
the  application  of  the  old  maxim :  "where  the  law  is  uncertain 
there  is  no  law."  In  such  case,  if  the  court  should  supply  the 
tests  of  criminality  so  indispensable  to  the  enforcement  of 
every  such  statute,  those  tests  would  not  have  the  sanction  of 

i6 


the  legislative  branch  of  the  government,  and  therefore  could 
not  be  the  lazv,  in  any  criminal  case.  Supplying  these  criteria 
of  guilt  is  therefore  clearly  a  matter  of  judicial  legislation, 
by  means  of  statutory  interpolation,  as  distinguished  from 
interpretation,  and  punishment  thereunder  is  punishment  for 
a  constructive  offence,  and  not  due  process  of  law. 

If  then  we  do  as  we  ought  and  look  to  the  very  nature 
of  our  social  organism  to  derive  therefrom  our  conception  of 
the  lazv,  as  that  word  is  used  in  our  state  constitutions,  and 
the  fifth  amendment  of  our  federal  constitution,  then,  because 
the  very  essence  of  "law"  is  natural  justice,  and  because  the 
establishment  of  that  justice  is  expressly  declared  to  be  the 
purpose  of  our  constitutions,  it  follows  that  "law"  must  always 
stand  as  the  destroyer  of  every  vestige  of  arbitrary  power, 
which  is  always  open  to  be  capriciously  exercised  or  unequally 
applied,  :nul  therefore  opens  the  gates  to  the  worst  forms  of 
legalized  injustice.  In  the  scientific  aspect,  the  "law"  is  a 
general  rule  of  civil  conduct,  (not  religious,  nor  merely  self- 
regarding,  nor  relating  to  matters  of  opinion  or  of  speech 
so  long  as  the  material  effect  of  these  terminate  with  the  in- 
dividual) which  rule  of  civil  conduct  must  exist  in  the  nature 
of  things  or  be  duly  enacted,  in  the  futherance  of  natural 
justice,  by  the  duly  constituted  law-making  power,  and  the 
enactment  and  its  publication  must  precede  the  conduct  to 
which  it  is  to  be  applied ;  which  rule  of  conduct  to  be  "law" 
must  not  do  violence  to  natural  justice,  and  therefore  every 
statute  penal  in  character,  or  one  creating  artificial  rights,  if 
it  is  to  be  "law,"  from  the  inherent  necessity  of  its  formal 
statement  (not  by  accidental  uniformity  in  the  judicial  inter- 
polation or  construction)  must  be  general  and  equal,  fixed 
and  certain,  as  to  all  persons  who  in  the  very  nature  of  things 
bear  the  same  relationship  to  one  another  and  to  the  state ; 
and  such  statute  cannot  from  its  inherent  necessity  be  gen- 
eral and  equal  in  its  application  to  all  similarly  situated,  unless 
it  be  also  so  plain  and  exact  in  its  description  of  the  right  cre- 
ated or  the  conduct  prohibited,  and  in  its  criteria  of  guilt,  that 
every  man  of  average  intelligence,  from  a  mere  reading  of  the 
statute  may  know  with  mathematical  certainty,  in  every  con- 
ceivable state  of  fact,  xvhy  and  hozv  his  legislatively  created 
right  attaches  or  lapses,  and  whether  or  not  his  proposed  con- 
duct is  permitted  or  penalized  ;  furthermore  a  penal  statute 
can    predicate   an   offence   and    its   punishment   only   upon   an 


actually  ascertained  material  injury,  or  the  imminent  danger  of 
such,  ascertained  according  to  the  known  laws  of  our  physical 
universe,  which  material  injury  must  be  imminent  to  or  actually 
realized  by  some  sentient  being,  not  giving  a  voluntary,  un- 
deceived consent,  or  one  who  from  immaturity  or  infirmity 
is  incapacitated  for  giving  that  consent.  If  a  statute  does 
not  conform  to  all  these  requirements,  then  I  believe  it  can- 
not be  the  laze,  and  all  penalties  inflicted  under  such  other 
statutes  are  the  deprivation  of  life  or  property  for  mere  con- 
structive offences,  and  cannot  constitute  "due  process  of  law." 
Herewith  I  will  close  the  discussion.  If  I  have  succeeded 
in  contributing  a  little  toward  clarifying  our  vision  as  to  the 
scientific  aspect  of  constructive  offences  in  relation  to  due 
process  of  law,  I  am  glad.  When  this  essay  was  first  written 
for  the  American  Law  Review,  in  submission  to  the  scientific 
method  I  cited  no  authorities  for  the  truth  of  my  contentions 
but  rather  sought  for  that  truth  without  which  "authorities" 
cease  to  be  even  evidence  of  the  law.  In  this  revision  I  have 
added  a  little  and  cited  a  very  few  authorities  for  the  support 
of  our  timid  logicians.  Later  we  shall  see  how  these  views 
harmonize  with  judicial  opinions,  which  however  seem  to  have 
arrived  at  their  conclusions  by  other  intellectual  methods,  than 
those  herein  contended  for,  and  evidently  without  any  presen- 
tation or  consideration  of  the  arguments  herein  presented. 


i8 


C().\CKK.\iX(.  Lxci-:irr.\L\Tv  and  dl'e  process 

(  )!'■  LAW. 
Revised  from  The  Central  Law  Joitnial.  Jan.  3.  1908. 

Nowhere  in  encyclopedias  or  text  books  have  I  been  able 
to  find  any  discussion  as  to  the  relationship  between  uncertainty 
in  statutory  enactments,  and  the  constitutional  requirement 
of  due  process  of  law.  The  subject  is  of  special  importance 
in  the  criminal  laws  where  in  late  years  we  find  innumerable 
enactments  in  which  epithetic  vituperation  and  judicial  legis- 
lation serve  in  lieu  of  a  necessary  statutory  exactness  in  the 
definition  of  that  which  it  is  intended  to  prohibit.  In  the  judi- 
cial decisions  to  be  hereafter  cited  the  subject  is  of  course 
discussed  somewhat,  but  all  of  them  combined  hardly  consti- 
tute anything  like  a  comprehensive  survey  of  the  question. 
That  is  the  reason  for  these  disquisitions. 

That  a  deprivation  of  liberty  or  j)roperty  may  be  due  proc- 
ess of  law,  two  things  must  occur.  Fir.st  there  must  be  a 
valid  "law."  within  the  meaning  of  that  word  in  the  consti-  y 
tutional  phrase  "due  process  of  law,"  and  secondly  the  process  ' 
prescribed  by  that  law  must  be  accurately  pursued.  Here  I 
am  directly  concerned  only  with  one  phase  of  the  question: 
what  is  essential  as  to  the  content  of  a  legislative  enactment 
to  make  it  a  criminal  "law"  within  the  meaning  of  the  con- 
stitution ?  Judicial  opinions  have  often  commented  upon  uni- 
formity and  universality  of  application,  to  all  who  in  the  nature 
of  things  are  similarly  situated,  as  an  essential  to  the  very 
existence  of  a  law.  Here  it  is  proposed  only  to  discuss  the 
efifect  of  uncertainty  in  a  criminal  statute,  as  related  to  the  non- 
existence of  "law,"  because  under  such  uncertain  statutes, 
courts  must  indulge  in  constitutionally  prohibited  judicial  legis- 
lation ;  and  because  statutory  uncertainty  excludes  the  require- 
ments of  unavoidable  uniformity  of  application  to  all  who  are 
naturally  similarly  situated.  In  other  words  it  is  proposed  to 
resurrect  the  ancient  maxim  "Ubi  jus  inccrtum  ibi  jus  nullum" 


(where  the  law  is  uncertain  there  is  no  law)  and  to  make  it  a 
rule  for  the  interpretation  of  the  "due  process  of  law"  clause 
of  our  constitutions. 

In  order  that  my  conclusions  may  not  be  discredited  by 
the  use  of  false  analogies  I  deem  it  wise  to  begin  with  a  short 
analytical  statement  which  will  differentiate  the  problem  which 
I  propose  to  discuss  from  kindred  problems  arising  from  un- 
certainties of  other  than  criminal  statutes,  and  the  probable 
different  effect  which  uncertainty  may  produce  in  different 
classes  of  legislation.  Even  though  the  preliminary  discussion 
may  be  superficial,  it  seems  needful  since  I  have  nowhere  found 
any  general  discussion  of  the  subject. 

Uncertain  Statutes  Classified. — It  is  conceivable  that  some 
civil  enactment  of  a  legislature  would  merely  be  an  effort 
verbally  to  declare,  and  legally  to  establish  and  maintain,  some 
rule  of  natural  justice  which  is  inherent  in  the  nature  of  things 
and  of  the  social  organism.  Uncertainty  in  such  a  statute,  re- 
sulting from  an  unfortunate  choice  of  words,  could  do  no 
serious  injustice  even  though  the  court,  either  by  legitimate 
construction  or  judicial  legislation,  would  make  it  certain,  if 
in  doing  so  nature's  rule  of  justice  was  not  violated,  nor  arti- 
ficial penalties  inflicted.  It  is  probable  that  uncertainty  in 
such  a  statute  would  not  necessarily  effectuate  its  annulment. 
At  any  rate  I  exclude  that  class  of  cases  from  my  discussion. 
A  second  class  of  statutes  which  might  be  objected  to  because 
of  uncertainty,  are  those  which  create  artificial  civil  remedies 
for  the  maintenance  of  natural  justice.  Here  ambiguity  and 
uncertainty  can  again  be  judicially  eliminated  in  accordance 
with  the  legislative  intent,  if  that  is  reasonably  ascertainable 
from  the  act  itself,  and  no  injury  result  to  innocent  parties, 
because  the  postulate  was  that  the  maintenance  of  natural 
justice  was  the  only  end  to  be  achieved  by  the  use  of  this  new 
artificial  remedy.  For  the  same  reason  such  laws  may  also 
be  retroactive. 

Chamberlain  v.  City  of  Evansville,  yy  Ind.  551. 

Davis  v.  Ballard,  i  Marshall  (Ky.),  579. 

The  third  class  of  uncertain  statutes  are  such  as  declare 
a  rule  of  justice  not  derived  from  nature  as  such,  but  finding 
its  foundation  in  some  artificial  condition  of  legislative  crea- 
tion. The  limitation  of  the  liability  or  rights  of  corporate 
stockholders  might  be  an  illustration.  When  in  such  legisla- 
tion the  effect  is  to  curtail  the  responsibility  which  naturally 

20 


should  How  from  one's  act,  great  exactness  in  expressing  the 
legislative  intent  to  that  effect  would  be  required,  since  every 
intendment  must  be  indulged  in  favor  of  the  natural  conse- 
quences of  one's  act  operating  under  natural  conditions.  But 
I  am  not  going  to  discuss  this  either.  I  have  mentioned  these 
classes  only  to  point  out  superficially  their  probable  difference 
from  the  next  class,  so  that,  in  the  mind  of  the  reader,  my 
argument  may  not  be  subjected  to  unmerited  discredit,  because 
of  the  thoughtless  use  of  false  analogies. 

The  fourth  class  of  legislation,  of  which  uncertainty  may 
be  an  attribute,  includes  all  those  laws  which  are  intended  to 
create  and  enforce  artificial  rights  or  which  are  punitive  in 
their  character.  The  creation  of  artificial  rights  such  as  arise 
from  the  establishment  of  a  public  postal  system,  patent  rights, 
and  copyrights,  are  all  laws  of  this  character  wherein  the 
statute  must  describe  with  the  accuracy  required  for  a  penal 
statute  upon  what  conditions  the  right  may  vest  or  be  des- 
troyed, else  again  we  are  governed  by  the  arbitrary  will  of 
men,  and  not  according  to  the  lazv.  The  relationship  of  "due 
process  of  law"  to  an  uncertainty  in  the  statutory  specification 
of  that  which  is  made  punishable  by  it,  is  the  special  matter 
here  to  be  discussed. 

Every  state  in  the  union  has  from  one  to  several  score 
of  penal  statutes  in  which  no  words  of  exact  meaning  serve 
to  define  with  any  certainty  what  it  is  that  is  prohibited.  In 
the  Inst  thirty  years,  under  only  one  class  of  these  uncertain 
statutes,  about  5,000  convictions  have  been  secured,  and  it  is 
fair  to  assume  that  under  all  others  including  an  infinite 
variety  of  vague  municipal  police  regulations  there  have  been 
some  20,000  more  citizens  deprived  of  liberty  and  property 
and  yet,  seemingly  no  one  has  ever  doubted  that  a  conviction 
under  such  statutes  constitutes  due  process  of  law.  This  makes 
me  wonder  if  I  am  dreaming  or  if  the  whole  rank  and  file  of 
the  bar  and  judiciary  have  forgotten  the  original  meaninc: 
and  purpose  of  "the  law  of  the  land."  I  do  not  even  except 
the  Supreme  Court  of  the  United  States,  because  it,  like  all 
the  appellate  courts  of  all  the  states,  has  repeatedly  enforced 
such  laws  without  a  doubt  ever  crossing  its  mental  horizon, 
either  originating  with  the  court  or  the  attorneys  appearing 
there  to  argue  in  such  cases. 

The  most  conspicuous  and  most  generally  approved  ex- 
amples of  these  many  and  outrageously   uncertain   laws,  arc 

21 


those  which  in  various  ways  penalize  "indecent,  obscene  and 
disgusting"  literature  and  art.  Those  who  need  to  have  a 
concrete  example  in  mind,  while  the  discussion  proceeds,  may 
be  thinking  of  those  laws  as  a  sample  of  many  others  which 
must  be  annulled  if  my  contention  is  correct. 

Uncertain  and  Ambiguous  Statutes  Distinguished. — First 
of  all  we  must  bear  in  mind  the  distinction  between  an  ambig- 
uous statute  and  an  uncertain  one.  An  ambiguous  statute  I 
conceive  to  be  one  which  is  expressed  in  words  some  of  which 
have  several  different  meanings,  all,  or  some  of  which 
meanings,  would  leave  the  statutory  signification  so  certain 
as  not  to  require  any  additional  words  to  make  its  meaning 
plain  and  uniform  beyond  doubt,  to  every  man  of  average  in- 
telligence. \\'hen  that  is  the  case  the  problem  is  one  of  con- 
struction, in  the  method  of  which  due  regard  is  to  be  had,  first 
for  the  liberty  of  citizens  and  second  for  the  legislative  in- 
tention, which  however  must  be  gathered  exclusively  from 
the  words  of  the  act  itself.  The  rules  for  statutory  construction 
will  always  protect  the  defendant,  so  he  shall  not  be  punished 
if  there  be  any  reasonable  doubt  as  to  whether  his  act  neces- 
sarily comes  within  the  very  letter  of  all  of  the  possible  mean- 
ings of  the  statutory  prohibition.  If  it  does  not  come  within 
every  possible  interpretation  of  the  legislative  language  the 
accused  must  have  the  benefit  of  the  doubt  under  the  rule 
of  strict  construction.  In  a  statute  which  is  only  ambiguous, 
we  can  thus  avoid  all  possibility  of  raising  the  constitutional 
question  which  I  am  proposing  to  discuss.  If  in  criminal  cases 
such  rules  for  a  strict  construction  do  not  safeguard  the 
liberties  of  citizens,  they  are  convicted  under  judicial  legis- 
lation, and  not  by  "due  process  of  law." 

By  an  uncertain  statute,  as  contradistinguished  from  an 
ambiguous  one,  I  mean  a  statute  which  is  uncertain  because 
incomplete  in  its  description  of  the  artificial  rights  created  by 
it,  or  the  act  which  it  proposes  to  punish.  Thus  an  uncertain 
statute  is  one  which,  when  applied  to  undisputed  facts  of  past 
or  present  existence,  is  incapable  of  any  literal  enforcement,  or 
incapable  of  enforcement  with  absolute  certainty  and  uniform- 
ity of  result,  except  by  the  judicial  addition  of  words,  or  tests, 
which  may  or  may  not  have  been  intended  by  the  legislature, 
but  which  are  not  unavoidable  implications  from  the  statutory 
language  alone.  It  will  be  contended  that  such  an  uncertainty 
in  a  statute,  creating  an  artificial  right  or  punishment,  makes 


22 


the  enactment  unconstitutional  because  in  its  practical  operation 
and  enforcement  it  unavoidably  involves  ex  post  facto  judicial 
legislation  in  defining  the  crime,  and  therefore  is  not  "due 
process  of  law,"  and  is  an  arbitrary  p^ovcrnment  of  men  and 
not  of  law.  As  to  the  requirement  of  certainty  in  laws  creative 
of  artifical  civil'  rights,  sec 

Blanchard  v.  Sprague,  Fed.  Case  No.  15 17,  and  cases. 

Also,  Bittle  V.  Stuart,  34  Ark.  229-232. 

Ferrcll  v.  Atwill,  i   I'.latchford,  157. 

Uncertainty  of  Evidence  and  of  Laiv  Distinguished. — These 
generalizations  can  hardly  provoke  much  antagonism.  It  there- 
fore seems  to  me  that  the  difficulty  lies  chiefly  in  a  clouded 
vision  concerning  their  application  to  concrete  facts.  We  shall 
presently  see  how  in  some  instances  it  is  not  at  first  clear 
whether  the  uncertainty  is  inherent  in  the  statute  or  arises  from 
doubt  as  to  the  probative  value  of  the  evidence  adduced  under 
it.  We  must  also  bear  in  mind  the  diflference  between  un- 
certainty which  arises  because  the  statute  attempts  to  make 
guilt  depend,  not  solely  upon  facts  of  present  or  past  existence, 
but  also  requires  a  decision  upon  an  essential  element  of  the 
crime  concerning  speculative  and  problematical  tendencies 
towards  future  results,  of  such  a  character  as  are  undetermin- 
able with  accuracy  and  uniformity  by  the  known  laws  of  the 
physical  universe.  Again  we  must  observe  the  difiFerence 
between  a  doubtful  sufficiency  of  evidence  to  establish  a  fact 
of  past  or  present  existence,  and  which  beyond  all  question 
is  of  a  demonstrable  character,  and  that  other  case  of  doubtful 
sufficiency  of  evidence  to  establish  a  fact,  not  of  past  or  present 
material  actuality,  and  which  from  its  very  nature  is  therefore 
incapable  of  certain  demonstration,  under  the  known  laws  of 
the  physical  universe,  but  is  by  the  statute  required  to  be 
proven  as  an  element  of  the  crime.  In  the  former  case  the 
uncertainty  of  guilt  or  innocence  is  not  chargeable  to  uncer- 
tainty of  the  statute.  In  the  latter  case  it  is  wholly  due  to 
such  uncertainty,  because  a  conclusion  as  to  the  present  ex- 
istence of  an  unrealized,  non-phy.sical  or  psychologic  tendency, 
is  but  an  unsupported  belief  as  to  the  doubtful  possibility  of  a 
future  doubtful  event.  Where  such  an  uncertainty  iniieres  in 
the  statute  itself,  and  is  of  the  essence  of  the  crime  it  attempts 
to  define  (as  is  the  case  with  our  obscenity  statutes  and  the 
judicial  legislation  creating  tests  of  obscenit>0.  then  in  the 
very  nature  of  things  guilt   must   always  be   determined  by 

23 


surmise,  speculation,  caprice,  emotional  association,  ethical 
sentimentalizing,  moral  idiosyncrasies  or  mere  whim  on  the 
part  of  judges  or  jurors.  Punishment  for  such  a  "crime,'"  or 
under  such  a  statute  is  the  arbitrary  deprivation  of  property, 
of  liberty,  or  both  according  to  the  dictates  of  men  not  vested 
with  legislative  authority,  and  therefore  is  not  according  to 
"due  process  of  law." 

Uncertainty  Concerning  the  "Obscene." — In  the  obscenity 
statutes  there  is  no  question  of  construing  involved  verbiage, 
but  solely  one  of  defining  the  word  "obscene."  Let  us  first 
clearly  understand  what  we  mean  by  a  "definition."  If  the 
word  "water"  had  been  used  in  a  statute,  every  average  man 
would  at  once  translate  that  word  into  the  same  general  mental 
picture.  Every  such  reader  would  probably  define  the  word 
"water"  as  standing  for  a  certain  transparent,  odorless  fluid, 
of  the  identical  kind  with  which  he,  and  every  one  else,  has 
had  abundant  experience.  There  never  w-ould  arise  in  any 
man's  mind  any  doubt  as  to  what  concrete  concept  the  general 
word  "water"  symbolized,  even  though  it  might  become  a 
matter  of  inquiry,  whether  a  particular  substance  was  water 
or  peroxide  of  hydrogen.  That  doubt  is  not  as  to  the  mean- 
ing of  the  word,  but  one  concerning  the  past  or  present  exist- 
ence of  the  corresponding  objective  fact;  one  of  classifying 
the  matter  as  water.  When  such  an  issue  has  arisen  we  do 
not  resort  to  a  definition  of  the  word,  for  the  purpose  of  mak- 
ing certain  what  concept  the  word  "water"  was  intended  to 
convey ;  instead,  we  call  in  experts  to  apply  the  chemical  tests 
by  which  the  objective  material,  "water,"  is  dififerentiated  from 
peroxide  of  hydrogen. 

To  determine  the  classification  of  a  particular  substance 
we  apply  mathematically  exact  and  always  uniform  tests,  not 
created  by  statute  and  not  a  part  of  a  judicial  definition  of 
any  word  used  in  the  statute.  If  such  exact  te'sts  exist  in  the 
nature  of  things  there  would  be  no  occasion  for  legislatures 
or  courts  to  prescribe  them.  If  they  do  not  exist  in  the 
nature  of  things  perhaps  the  legislature  has  the  right  and 
power  to  create  its  own  artificial  tests  or  definitions,  but  in  a 
criminal  statute  they  must  be  of  equal  certainty  with  the  as- 
certained laws  of  the  physical  universe.  If  neither  science  nor 
the  statute  furnishes  us  with  a  definite  test  by  which  to  de- 
termine the  existence  of  those  things  expressed  by  statutory 
words  and  which  are  essential  to  a  definition  of  a  crime,  then 

24 


the  law  is  void  for  uncertainty  and  the  lack  of  statutory  tests 
of  criminality  cannot  be  su])i)lic(l  by  the  courts  since  that  would 
be  judicial  criminal  legislation  and  ex  post  facto  at  that. 

If  such  tests  were  not  a  matter  of  exact  science,  but  merely 
a  matter  of  speculation,  or  necessary  judicial  creation  in  the 
attempt  to  enforce  such  an  uncertain  law,  then  they  would  be 
unconstitutional  judicial  legislation  and  not  definition  nor 
statutory  interpretation,  ^^lrthermore,  if  such  tests  are  not 
of  mathematical  certainty,  then  the  law  would  be  a  nullity 
because  "where  the  law  is  uncertain,  there  is  no  law."  Let 
us  now  keep  in  mind  the  word  "water"  (in  contrast  with  the 
word  "obscene,")  and  the  character  of  those  diflferentiating 
tests,  not  of  statutory  origin,  nor  necessarily  implied  in  the 
statutory  words,  but  by  which  we,  as  a  matter  of  physical 
science,  distinguish  the  substances  of  that  for  which  the  words 
stand. 

With  the  foregoing  distinction  in  mind,  I  af^rm  that  no 
human  can  define  the  word  "obscene"  so  that  every  reader, 
even  with  the  help  of  the  test,  or  definition,  must  receive  there- 
from the  same  concrete  mental  picture.  The  reason  obviously 
is,  that  unlike  the  word  "water,"  the  word  "obscene"  stands 
for  no  particular  concrete  objective  quality,  but  always  and 
ever  stands  for  an  abstraction,  in  which  is  generalized  only 
subjective  states,  associated  with  an  infinite  variety  of  ob- 
jectives, and  therefore  in  the  concrete  it  will  always  have  a 
different  significance  for  every  individual,  according  to  what 
he  has  personally  abstracted,  from  his  peculiar  and  personal 
experience,  and  classified  according  to  his  own  associated 
emotions  of  disapproval,  and  included  within  his  personal 
generalization  "obscene."  Each  individual  therefore  reaches 
a  judgement  about  obscenity  according  to  his  own  ever-vary- 
ing experiences,  and  the  peculiarly  personal  emotional  associa- 
tions (of  approval  or  disapproval)  which  are  evolved  from 
these,  as  well  as  the  degrees  of  his  sexual  hyperaestheticism. 

See  "What  is  Criminally  Obscene"  in  Albany  Laiv  Journal, 

July,  1906: 

"Legal  Obscenity  and  Sexual  Psychology—"  in  the 
Medico-Legal  Journal,  September.  1907.  Alienist  and  Neurolo- 
gist, August,  1908. 

Also  "Freedom  of  the  Press  and  Obscene  Literature,"  a 
pamphlet  published  by  The  Free  Speech  League,  120  Lexing- 
ton avenue.  New  York. 

25 


■"X'arieties  of  official  Modesty."  Adi.  Jour,  of  Eugenics 
Dec,   1907. 

From  this  indisputable  fact,  it  follows  that  the  word 
"obscene"  is  indefinable  as  a  matter  of  science  and  the  criminal 
statute,  of  which  that  word  is  an  indispensable  element,  is 
void,  because  "where  the  law  is  uncertain  there  is  no  law,"  and 
no  "due  process  of  law." 

We  must  make  still  clearer,  if  possible,  the  difference  be- 
tween the  uncertainty  of  the  "obscene"  and  other  remotely 
similar  uncertainties.  Some  will  ask,  is  not  the  uncertainty  of 
the  existence  of  a  special  intent  which  sometimes  is  made  an 
essential  element  of  a  crime,  just  as  uncertain  as  the  unrealized 
psychologic  tendencies  of  a  book,  which  are  the  judicial  test 
of  its  obscenity?  I  answer  "No!"  The  existence  of  that 
intent  as  to  past  acts  is  in  its  nature  a  demonstrable  fact.  The 
accused  if  he  would  tell  the  truth  could  settle  it  beyond  a 
doubt.  Here  the  uncertainty  is  one  of  evidence  not  of  statutory 
tests  of  crime.  An  unrealized  psychologic  potential  tendency 
of  a  book  upon  its  hypothetical  future  reader,  has  only  a 
speculative  future  existence,  not  determinable  with  exactness 
by  any  known  law  of  the  physical  universe,  and  therefore  is 
not  a  demonstrable  fact  but  one  that  we  only  guess  at,  and 
ai  to  which  neither  the  accused,  nor  any  one  else,  can  furnish 
certain  information,  nor  have  any  certain  advance  knowledge, 
as  to  just  exactly  what  will  induce  the  court  or  jury  to  judge 
it  to  be  criminal.  The  criminal  intent  of  a  man  charged  with 
crime  is  a  fact  which  in  point  of  time  antedates  the  indictment 
and  verdict,  and  has  such  prior  existence  objectively  to  the 
mind  of  the  juror  or  trial  court.  Not  so  with  obscenity.  The 
test  by  which  juries  are  instructed  to  determine  the  existence 
of  "obscenity,"  depends  upon  their  speculation  about  the  psy- 
chologic tendency  of  a  particular  book,  upon  a  future  hy- 
pothetical reader,  which  tendency  has  not  yet  become  actualized 
at  the  time  of  indictment  or  trial,  and  which  psychologic  tend- 
encies are  not  known  to  us  to  be  controlled  by  any  exact 
known  law  having  the  immutability  of  the  physical  laws  of 
our  material  universe.  It  follows  that  unlike  specific  intent 
which  is  a  demonstrable  fact  of  past  existence  and  objective 
to  the  mind  of  the  court,  the  unrealized  psychologic  tendency, 
by  which  a  particular  book  is  judged  "obscene,"  has  no  dem- 
onstrable existence  except  as  a  belief  about  a  doubtful  future 
possibility,  and  existing  exclusively  as  a  mere  belief  in  the  mind 


of  the  trial  judge  or  jury,  and  without  any  known  proven  or 
provable  present,  corresponding  objective.  Such  an  uncertain- 
ty is  one  of  law  and  not  of  evidence,  because  it  arises  out 
of  the  fact  that  the  statute  (or  the  judicial  legislation  under 
it  as  to  the  tests  of  obscenity)  predicates  guilt  upon  a  con- 
clusion about  an  undemonstrable  factor  of  speculative  future 
existence. 

No  legislature  has  the  power  to  penalize  travel  in  an  auto- 
mobile at  a  "dangerous  speed,"  and  leave  to  the  trial  court  or 
jury  to  say  in  each  case  whether  the  speed  is  dangerous  or  not. 
What  is  a  "dangerous"  speed  is  a  legitimate  subject  for  the 
exercise  of  legislative  discretion,  and  is  determinable  only  by 
the  legislature,  and  its  authority  cannot  be  delegated  to  the  vary- 
ing judgments  of  varying  juries.  So  likewise  what  is  to  be 
deemed  of  dangerous  moral  tendency  is  a  matter  exclusively  of 
legislative  discretion,  and  must  be  determined  and  definitely 
fixed  by  decisive  definition  of  the  law-enacting  power,  and 
the  formulation  of  tests  cannot  be  delegated  to  the  varying 
judgments  of  varying  courts  or  juries.  Since  the  "obscenity" 
of  a  book  is  not  by  the  statute  defined  to  consist  in  any  of  its 
sense-perceived  qualities  and  since  therefore  the  legislature  has 
not  completed  nor  expressed  its  legislative  discretion  to  de- 
cide what  is  deemed  to  be  of  "dangerous  tendencies."  and  since 
that  legislative  function  cannot  be  delegated  to  the  jury  or 
judge  to  be  exercised  c.v  post  facto  or  otherwise,  it  follows 
that  there  is  no  law  upon  the  subject  and  no  due  process  of 
law  in  any  such  prosecution. 

On  the  Certainty  Essential  to  the  Validity  of  a  Criminal 
Statute  Against  Obscenity. — To  constitute  a  valid  criminal  law 
the  statute  under  consideration  must  so  precisely  define  the 
distinguishing  characteristics  of  the  prohibited  degree  of  "ob- 
scenity" that  guilt  may  be  accurately  and  without  doubt  ascer-  \^' 
tained  by  taking  the  statutory  description  of  the  penalized  qual-  ' 

ities  and  solely  by  these  determine  their  existence  in  the  physi- 
cal attributes  inherent  in  the  piinted  page.  Judicial  tests  of 
"obscenity"  cannot  be  read  into  the  statutory  words.  Nor 
can  official  or  judicial  speculations  (of  a  character  not  cal- 
culated to  discover  such  definitely  penalized  physical  qualities 
in  the  book),  be  permitted  so  long  as  they  deal  only  with  a  mere 
unrealized  psychologic  potentiality,  for  influencing  in  the  future 
some  mere  hypothetical  person.  Such  speculative  psychologic 
tendencies  are  never  found  with  certainty  in  any  book,  but  are 

27 


(,^ 


read  into  it,  with  all  the  uncertainty  of  the  a  priori  method, 
as  an  excuse  for  a  verdict  of  guilty.  Even  if  the  legislative 
body  attempted  to  authorize  such  a  procedure  it  would  be  a 
nullity  under  the  maxim  "Where  the  law  is  uncertain  there  is 
no  law."  Therefore  such  procedure  cannot  be  "due  process 
of  law."  An  unrealized  psychologic  tendency  cannot  be  made 
the  differential  test  of  criminality,  although  such  tendency 
may  properly  appeal  to  the  legislative  discretion  and  may 
properly  result  in  penal  laws  wherein  the  statutes  and  not  the 
courts,  specify  the  tests,  definite  and  certain,  by  which  to  de- 
termine what  it  is  that  is  deemed  to  possess  the  criminal  degree 
of  such  dangerous  tendency. 

General  Statement  as  to  the  Required  Certainty  of  Criminal 
Statutes. — We  now  come  to  the  contention  that  a  criminal 
statute  cannot  constitute  "due  process  of  law,"  unless  it  is  gen- 
eral, uniform,  fixed  and  certain.  These  qualities  are  more  or 
less  related  since  if  a  law  is  not  fixed  and  certain  it  can  seldom 
be  general  and  uniform  in  its  application.  Now  we  are  specially 
interested  to  get  a  more  condensed  summary  as  to  what  is 
meant  by  the  requirement  of  fixity  and  certainty,  in  a  statute. 

Our  claim  is  that  a  criminal  statute  to  constitute  "due  pro- 
cess of  law,"  must  define  the  crime  in  terms  so  plain,  and 
simple,  as  to  be  within  the  comprehension  of  the  ordinary 
citizen,  and  so  exact  in  meaning  as  to  leave  in  him  no  reason- 
able doubt  as  to  what  is  prohibited.  Those  qualities  of 
generality,  uniformity,  and  certainty,  must  arise  as  an  unavoid- 
able necessity  out  of  the  very  letter  of  the  definition  framed 
by  the  law-enacting  power,  and  not  come  as  an  incidental 
result,  from  an  accidental  uniformity  in  the  exercise  by  courts 
of  an  unconstitutionality  delegated  legislative  discretion.  If 
a  statute  defining  a  crime  is  not  self  explanatory  but  needs 
interpretation  or  the  interpolation  of  words  or  tests  to  insure 
certainty  of  meaning,  or  because  its  ambiguity  permits  of  more 
than  one  judicial  interpretation,  then  it  is  not  the  law  of  the 
land,  because  no  such  selected  interpretation  of  the  courts  has 
ever  received  the  necessary  sanction  of  the  three  separate 
branches  of  legislative  power,  whose  members  alone  are  author- 
ized and  sworn  to  define  crimes  and  ordain  their  punishment. 
Laws  defining  crimes  are  required  to  be  made  by  the  law- 
making branch  of  government  because  of  the  necessity  for 
limiting  and  destroying  arbitrariness  and  judicial  discretion  in 
such  matters.     That  is  what  we  mean  when  we  say  ours  is 

28 


a  government  by  law  and  not  by  men.  It  follows  that  it  is 
not  enough  that  uniformity  and  certainty  shall  come  as  the 
product  of  judicial  discretion,  since  "law"  is  necessary  for  the 
very  purpose  of  destroying  such  discretion  in  determining 
what  is  punishable.  No  single  authority  taken  by  itself  justifies 
all  the  contentions  which  I  have  generalized  herein  above.  Yet 
every  separate  portion  of  the  generalization  has  some  support 
in  some  creditable  authority.  My  effort  has  been  to  generalize 
all  that  I  have  gathered  from  a  perusal  of  all  of  the  authorities 
to  be  quoted  hereafter. 


29 


THE    HISTORICAL    INTERPRETATION    OF    "LAW" 
IN  RELATION  TO  STATUTORY  CERTAINTY. 

REVISED  FROM  Tlic  AWauy  Lazv  Journal,  april,  1908. 

As  I  view  history,  the  evolution  of  organized  government 
toward  Hberty,  especially  in  its  relation  to  laws  which  are  penal 
in  character,  is  clearly  divided  into  three  general  classes  of 
tendency.     The  first  of  these  manifests  itself  in  the  effort  to 
restrain  autocratic  sovereigns  and  their  minions  in  the  arbitrari- 
ness of  their  power  to  punish,  by  subjecting  their  wills  and 
penalties  to  the  authority  of  prior  known  rules  or  laws.     The 
second  step  in  this  evolution  toward  liberty  is  to  curtail  the 
authority   of  the  lawmaking  power  as  to  the  manner  of  its 
exercise,  so  that  it  may  not,  even  under  the   forms  of  law, 
violate  that  natural  justice  which  requires  uniformity  of  the 
law  in  its  application  to  all  those  who  in  the  nature  of  things  are 
similarly  situated,  which  uniformity,  of  course,  is  impossible 
unless  the  law  is  certain  in  the  definition  of  what  is  prohibited. 
The  third  tendency  is  marked  by  the  curtailment  of  the  legisla- 
tive power  as  to  the  subject  matter  of  its  control,  so  as  to 
conserve  a  larger  human  liberty  by  excluding  certain  conduct 
— and  progressively  an  increasing  quantum  thereof — from  all 
possible  governmental  regulation,  even  by  general,  uniform, 
and  certain  laws.    This  should  later  limit  legislation  to  the  pro- 
hibition of  only  such  conduct  as  in  the  nature  of  things  neces- 
sarily involves  an  invasion  of  the  liberty  of  another,  to  his 
material  and  ascertainable  injury.  I  have  no  doubt  it  was  such 
a  government,  of  limited  power  to  regulate  human  affairs,  that 
the  framers  of  American  constitutions  intended  to  establish. 
The  first  stage  of  the  evolution  above  indicated  we  gener- 
ally term  a  lawless  government  of  men,  in  contradistinction  to 
a  government  by  men  according  to  law,  and  such  a  government 
of  men  is  always  despotic  and  arbitrary,  although  it  may  at 
times  be  a  relatively  benevolent  despotism.     The  second  stage 
means  a  government  by  men  according  to  prior  established 
rules,    which    rules    may   be    as    invasive    and    unjust    as    the 

30 


legislative  power  sees  fit  to  make  them.  This  condition  is  aptly 
described  as  tyranny  by  the  laws,  of  which  we  find  many  ex- 
amples all  around  us.  The  third  stage  wherein  the  legislative 
power  is  limited  to  the  suppression  of  acts  which  are  neces- 
sarily, directly  and  immediately,  invasive,  is  aptly  termed 
liberty  under  the  law.  Our  present  stage  of  evolution,  so  far 
as  the  leaders  of  thought  are  concerned,  is  probably  to  be 
located  near  the  beginnings  of  this  stage,  and  in  the  course  of 
a  few  thousands  of  years  we  may  attain  to  something  approxi- 
mating real  liberty  under  the  law ;  and  in  another  million  years 
we  may  attain  to  the  Anarchist  ideal,  which  is  liberty  without 
law,  made  possible  because  no  one  has  the  inclination  to  invade 
his  neighbor,  and  all  are  agreed  as  to  what  constitutes  an 
invasion.  The  great  mass  of  Americans,  and  humans  gener- 
ally, are  now  in  that  stage  of  their  development  which  compels 
a  love  of  tyranny  under  the  forms  of  law, — a  tyranny  tempered 
only  by  the  discretion  of  the  ignorant,  such  as  know  nothing 
of  liberty  in  the  sense  of  an  acknowledged  claim  of  right  to 
remain  exempt  from  authority. 

The  transition  from  despotism  to  government  by  law,  in  its 
earlier  stages  is  marked  by  the  misleading  seemings  of  law, 
which,  however,  are  devoid  of  all  its  essence.  This  is  illus- 
trated in  many  of  the  miscalled  laws  of  the  Russian  Tsar,  and 
also  in  the  Chinese  code,  which  latter  prescribes  a  punishment 
for  all  those  who  shall  be  found  guilty  of  "improper  conduct," 
without  supplying  any  further  criterion  or  test  of  guilt.  Mani- 
festly under  such  authority  the  magistrates  are  justified  in 
punishing  anything  which  whim,  caprice,  or  malice  might 
prompt  them  to  adjudge  "improper."  Accordingly,  we  have 
a  state  of  afifairs  wherein  under  the  misleading  appearances  of 
law  everything  is  condemned,  and  the  arbitrary  will  of  the 
officers  of  the  State  again  creates  the  penalty  instead  of  merely 
enforcing  "the  laiv"  as  they  find  it.  Thus,  while  observing  the 
outward  forms  and  seemings  of  lav.-,  the  people  are  still  gov- 
erned by  the  mere  despotic  wills  of  officials. 

Upon  the  questions  as  to  what  are  all  the  essentials  of  law, 
and  what  are  the  limits  of  liberty  we  still  have  in  the  main, 
very  crude  thinking  and  perhaps  still  more  crude  efforts  to- 
ward generalizations.  So  far  as  my  investigations  have  in- 
formed me,  no  court  has  had  the  confident  clarity  of  vision, 
to  even  attempt  the  formulation  of  a  comprehensive  general 
statement  as  to  the  limits  of  liberty  and  governmental  control. 

31 


This  of  course  means  that  our  judges  are  still  in  that  early 
stage  of  their  intellectual  development  wherein  this  branch  of 
tlie  law  has  not  become  a  science.  However  it  is  a  most  de- 
plorable state  of  mind  which  too  often  impels  courts  to  confess 
to  the  permanent  intellectual  bankruptcy  of  the  judiciary  by 
asserting  that  such  definitive  generalizations  are  impossible". 

In  the  present  essay  I  am  going  to  deal  only  with  that  one 
element  of  law  which  imperatively  demands  certainty  in  the 
penal  statutes.  In  the  Central  Laiv  JournaL  Jan.  3,  1908,  I 
dealt  with  the  requirements  of  certainty  as  applied  to  one 
class  of  crimes.  In  the  Am.  Lazu  Review  for  June  1908,  I 
evolve  a  declaration  as  to  the  meaning  of  "Law,"  interpreted 
from  the  scientific  viewpoint.  The  present  purpose  is  to  in- 
quire into  the  historical  verdict  as  to  the  reasons  which  make 
law  a  necessity  and  especially  the  verdict  of  all  lovers  of 
liberty  as  to  the  degree  of  certainty  required  to  make  a  penal 
statute  THE  LAW,  and  its  enforcement  "due  process  of  law." 
The  method  will  be  to  exhibit  the  facts  and  the  authorita- 
tive declarations  concerning  this  question  as  these  appear  in 
our  juridical  history.  This  fragmentary  material,  often  includes 
very  crude  statements  of  imperfectly  conceived  principles, 
as  well  as  mere  empirical  generalizations,  but  out  of  it  we 
can  erect  a  rational  generalization,  and  this  will  be  done  so  far 
as  is  necessary  to  determine  the  degree  of  certainty  in  the  law, 
as  the  same  is  formulated  in  penal  statutes. 

I  confess  that  it  seems  to  me  as  though  men  claiming  to 
be  learned  in  the  law  should  be  presumed  to  know  all  that 
follows,  and  yet  it  is  self-evident  that  they  do  not.  I  say 
self-evident,  because  the  fact  is  notorious  that  among  the  many 
uncertain  criminal  statutes  those  only  which  are  directed  against 
"obscene,  indecent,  filthy  or  disgusting"  literature  and  art, 
which  words  are  as  vague  as  a  London  fog,  (see  "Varieties  of 
official  Modesty"  in  American  Journal  of  Eugenics,  Dec,  1907 ; 
"What  is  Criminally  'Obscene,'  Albany  Laiv  Journal,  July, 
1906;  "Legal  Obscenity  and  Sexual  Psychology;"  Medico- 
Legal  Journal,  Sept.,  1907,  et  seq;  "Freedom  of  the  Press  and 
'Obscene'  Literature,"  Published  by  the  Free  Speech  League, 
120  Lex.  Av.,  N.  Y.  City.  See  also  "Uncertainty  and  Due 
Process  of  Law"  in  Central  Law  Journal,  Jan.  3,  1908),  have 
resulted  in  over  5000  persons  being  deprived  of  life,  liberty, 
or  property,  and  yet  it  seems  hardly  to  have  occurred  to  any 
one  connected  with  these  cases  to  question  the  constitutionality 

32 


of  those  laws  because  of  their  uncertainty.  Such  facts,  and 
numerous  equally  vague  statutes  and  municipal  ordinances 
which  are  continually  being  enforced,  without  having  their 
constitutionality  questioned,  demonstrate  that  the  intelligence 
of  the  profession  in  general  has  not  yet  risen  to  the  point  where 
there  is  any  need  to  apologize  for  attempting  to  enlighten 
its  members  concerning  the  constitutional  requirement  of  cer- 
tainty in  penal  statutes. 

EARLY   WRITERS  ON   THE  NECESSITY   OF  LAW. 

John  Adams,  in  "A  Defense  of  the  Constitution  and  Gov- 
ernment of  the  United  States,"  defends  at  some  length  the 
proposition  that  even  under  laws  to  which  all  are  equally  sub- 
ject the  Majority  may  oppress  the  minority.  In  this  connec- 
tion he  speculates  about  the  meaning  and  limits  of  liberty,  in 
the  course  of  which  discussion  he  quotes  from  numerous  old 
authors  about  the  necessity  of  a  government  according  to 
lazv  to  prevent  the  tyranny  of  arbitrary  punishments  by  the 
magistrate.  I  will  now  condense  some  of  Mr.  Adams'  quota- 
tions and  speculations,  asking  the  reader  as  he  scans  the  fol- 
lowing quotations  concerning  the  necessity  for  having  princes 
and  judges,  govern  according  to  lazv,  always  to  bear  in  mind 
the  essential  nature  of  the  law,  in  contradistinction  to  arbitrary 
edicts. 

"It  is  weakness  rather  than  wickedness  which  renders  men 
unfit  to  be  trusted  with  unlimited  power.  *  *  *  Junius 
says :  Laws  are  intended,  not  to  trust  to  what  men  will  do,  but 
to  guard  against  what  they  may  do.  Aristotle  says,  that  'A 
government  where  the  Laws  alone  should  prevail,  would  be 
the  kingdom  of  God.'  This  indeed  shows  that  this  great  phil- 
osopher had  much  admiration  of  such  a  government :  Aris- 
totle says  too,  in  another  place,  'Order  is  law,  and  it  is  more 
proper  that  law  should  govern,  than  any  one  of  the  citizens 
upon  the  same  principal,  if  it  is  advantageous  to  place 
the  supreme  power  in  some  particular  persons,  they 
should  be  appointed  to  be  only  guardians,  and  the  servants 
of  the  laws.'  These  two  are  very  just  sentiments, 
but  not  a  formal  definition  of  liberty.  Livy,  too.  speaks  of 
happy,  prosperous,  and  glorious  times,  when  'Imperia  legum 
potentiora  fuerant  quan  hominum.'  But  he  no  where  says  that 
liberty  consists  in  being  subject  only  to  the  legum  imperio. 
Sidney  says,  'No  sedition  was  hurtful  to  Rome,  "until  through 
their  prosperity,  some  men  gained  a  power  above  the  laws.' 

33 


In  another  place  he  tells  us  too,  from  Livy,  that  some,  whose 
ambition  and  avarice  were  impatient  of  restraint,  complained 
that  'Lyes  rem  surdain  esse,  incxorabilem,  sahtbriorem  inopi 
quam  potenti;  And  in  another  that  no  government  was  thought 
to  be  well  constituted,  unless  the  laws  prevailed  against  the 
commands  of  men,'  But  he  has  no  where  defined  liberty  to 
be  subjection  to  the  laws  only.  Harrington  says,  government 
de  jure,  or  according  to  ancient  prudence,  is  an  art,  whereby 
a  civil  society  of  men  is  instituted  and  preserved  upon  the 
foundation  of  common  interest,  or,  to  follow  Aristotle,  and 
Livy,  it  is  an  empire  of  laws  and  not  of  men.  And  govern- 
ment, to  define  it  according  to  modern  prudence,  or  de  facto, 
is  an  art,  by  which  some  man,  or  some  few  men,  subject  a 
city  or  a  nation,  and  rule  it  according  to  his  or  their  private 
interest,  which,  because  the  laws  in  such  cases  are  made  ac- 
cording to  the  interest  of  a  man,  or  a  few  families,  may  be  said 
to  be  the  empire  of  man,  and  not  of  laws ;  Sidney  says, 
'Liberty  consists  solely  in  an  independency  on  [of]  the  will  of 
another,  and,  by  a  slave,  we  understand  a  man  who  can  neither 
dispose  of  his  person  or  goods,  but  enjoys  all  at  the  will  of 
his  master."  And  again,  "As  liberty  consists  only  in  being- 
subject  to  no  man's  will  and  nothing  denotes  a  slave,  but  a  de- 
pendence upon  the  will  of  another  ;  if  there  be  no  other  law 
in  a  kingdom  but  the  will  of  a  prince,  [or  of  the  judiciary] 
there  is  no  such  thing  as  liberty !" 

"A  Defence  of  the  Constitution,"  etc.,  letter  XXVI  in 
Vol.  I. 

It  appears  sufficiently  evident  from  these  past  contentions 
for  liberty  that  the  necessity  for  statutes  in  criminal  cases 
arises  out  of  the  necessity  for  strengthening  the  weakness  and 
curbing  the  passions  of  judges,  who,  according  to  all  experi- 
ences and  while  remaining  human,  cannot  be  safely  trusted 
with  arbitrary  power  to  determine  what  shall  be  punishable. 
Since  such  are  the  reasons  uniformly  assigned  by  the  older 
philosophers  for  their  insistence  upon  subjecting  the  will  of 
judges  to  the  law,  it  follows  that  criminal  statutes  fall  short 
of  satisfying  the  demand  for  law,  if  by  their  uncertainty  they 
compel,  or  permit,  judges  to  exercise  a  discretion  in  framing 
tests  of  criminality  such  as  are  not  specifically  written  into  the 
very  words  of  the  penal  code.  Let  us  now  briefly  trace  these 
same  influences  in  the  origin  of  magna  charta  and  the  English 
conception  of  "the  law  of  the  land."     This  of  course  is  re- 

34 


stated,  without  being  altered,  in  our  American  constitutional 
guarantee  of  "due  process  of  law."  A  little  farther  on  we 
consider  the  later  unfoldnient  of  the  judicial  intcri)rctation 
of  "law." 

M.'XGNA  CHARTA  AND  "tHE  LAW   OF  TIIK   LAND." 

The  ancient  prohibition  against  an  infhction  of  penalties 
"without  due  process  of  law,"  or,  what  usually  amounts  to 
the  same  thing,  those  inllicted  under  "ex  post  facto  laws,"  or 
for  mere  constructive  injuries,  or  crime,  was  the  most  es- 
sential and  fundamental  guarantee  of  an  Englishman's  liberty. 

King  John,. we  are  told,  filled  his  coffers  by  confiscation  and 
cruel  extortions.  He  invited  dignitaries  to  London,  then  de- 
clared them  prisoners  until  they  should  pay  large  fines.  These 
penalties  were  not  inflicted  for  offenses  against  any  general 
or  prior  known  laws,  such  that  with  certainty  could  have 
informed  the  citizens  in  advance  that  their  conduct  was  illegal, 
or  warn  them  of  the  ])enalty  thereof.  "Liberty  of  all  kinds  was 
vendible  in  the  reign  of  John"  precisely  because  there  was  no 
law,  in  the  sense  of  general  rules  with  undoubted  certainty  of 
meaning,  to  define  the  limits  of  liberty  or  furnish  a  refuge  of 
defence  for  the  citizens  in  the  exercise  of  his  liberty,  or  to  cur- 
tail the  arbitrary  power  of  a  tyrant  King  or  his  judiciary. 

To  prevent  this  lawlessness  of  official  power  as  exemplified 
in  the  arbitrary  infliction  of  penalties,  the  barons  by  force 
exacted  the  Magna  Charta.  In  that  document,  as  confirmed  by 
Henry  the  III  and  Edward  the  I,  we  find  it  stated  that  "No 
free-man  shall  be  taken  or  imprisoned  or  disseized  of  his 
freehold  or  liberties,  *  *  *  but  by  lawful  judgment  of 
his  peers  or  by  the  law  of  the  land."  (Chap.  29  Magna 
Charta).  If  read  in  the  light  of  the  historical  facts  which 
brought  this  into  being  it  is  manifest  that  the  primal  purpose 
of  all  this  was  that  no  man  might  be  deprived  of  his  property 
or  liberty  or  be  tricked  into  criminality,  by  any  unknown  or 
uncertain  rules,  such  as  would  not  warn  him  in  advance,  and 
with  unerring  certainty,  that  his  conduct  was  prohibited. 

The  Magna  Charta  required  only  that  criminal  statutes 
should  be  certain  and  general.  It  did  not  yet  by  its  strict  letter 
prevent  their  being  made  so  after  the  fact  charged  as  crime, 
if  the  King  and  Parliment  saw  fit  then  to  prescribe  a  punish- 
ment. This  furnished  the  opportunity  for  shifty  tyrants  to 
evade  the  spirit  of  Magna  Charta.  and  they  did  it.  In  the  25th 
Edward  III,  a  law  provided  thus:   "It  is  accorded,  that  if  any 

35 


case,  supposed  treason,  which  is  not  above  specified,  doeth 
happen  before  any  justices,  the  justices  shall  tarry  without 
any  going  to  judgment  of  the  treason,  till  the  cause  be  showed 
and  declared  before  the  King  and  his  Parliment  whether  it 
ought  to  be  judged  treason  or  other  felony."  (English  Liber- 
ties 64).  Thus  tyrants  kept  the  latter  of  the  "due  process  of 
law"  provision  of  ]\Iagna  Charta,  and  yet  accomplished  quite 
etfectively  the  repudiation  of  its  spirit  and  of  the  very  essence 
of  lazi\.  and  thus  they  again  successfully  distroyed  liberty. 
From  such  circumstances  grew  the  demand  which  resulted  in 
a  charter-prohibition  against  e.r  post  facto  laws. 

However  the  tyrants  are  always  fertile  in  the  evasion  of 
charters  and  constitutions,  such  as  are  intended  to  limit  their 
arbitrary  power,  and  correspondingly  to  protect  the  citizen 
against  official  invasion.  So  next  we  find  men  imprisoned 
under  the  authority  of  a  special  royal  commission,  which  im- 
plied a  process  similar  to  our  present  occasional  excutive 
legislation.  There  were  not  wanting  Judges  who,  impelled 
by  a  lust  for  power  or  even  more  base  motives,  were  ready  to 
affirm  the  validity  of  such  evasions  of  the  English  Charters 
of  Libert}%  by  the  judicial  engraftment  of  exceptions,  called 
martial  law.  And  so  it  became  necessary  to  make  English 
liberties  more  safe,  by  perfecting  the  writ  of  Habeas  Corpus, 
and  securing  the  re-affirmance  of  the  former  safeguards  of 
liberty.  In  all  of  the  English  charters  of  liberty,  and  their 
various  re-affirmations,  one  principle  is  always  discernable 
in  the  use  of  such  words  as  "due  process  of  law,"  and  by  the 
"law  of  the  land."  It  was  not  the  purpose  to  change  the 
person  of  the  despot,  or  to  transfer  despotic  power  from  an 
autocrat  to  the  judiciary ;  neither  was  it  intended  merely  to 
influence,  those  vested  with  despotic  power  to  change  the 
mode  of  exercising  their  discretion  under  it.  On  the  contrary, 
the  plain  purpose  was  to  destroy  the  discretion  itself,  so  as,  at 
the  trial  of  an  accused,  to  preclude  every  possibility  of  the 
arbitrary  judical  determination  as  to  what  should  be  the 
criminal  statutes  as  applied  to  his  acts.  All  along  the  history 
of  these  stormy  times,  it  is  made  plain  that  the  charter  phrases, 
for  the  protection  of  liberty  were  designed  to  mean  that  a  man 
should  be  deprived  of  liberty  or  property  except  by  a  prior 
duly  enacted  publicly  promulgated  law,  which  to  be  a  "law" 
must  be  general  in  terms  equal  in  its  application  to  all  who  in 
the  nature  of  things  are  similarly  situated  and  to  accomplish 

36 


this  it  must  be  so  certain  as  to  its  meaning  that  no  man  of 
ordinary    intelligence   could   be   misled   by    it.      The   manifest 
intention   was   to   safe-guard   liberty,   against   every   arbitrary 
determination  of  guilt  in  a  manner  that  could  not  be  realized  if 
an  enactment  should    lack  any  of  these  qualities,  and  in  conse- 
quence we  must  say  that  a  conviction  under  such  statute  would 
not  be  according  to  the  hnv,  and  therefore  would  not  be  within 
Magna  Charta  (jr  our  own  constitutionality  guaranteed  "due 
process  of   law."     If  a   statute  defines  a  crime   in   uncertain 
terms,  a  judge,  who,  under  the  pretext  of  construing  it,  should 
attempt  to  supply  the  absent  but  necessary  certainty  of  mean- 
ing, through  judicially  created  tests  of  criminality,  then,  as  to 
the  person  on  trial,  such  a  judge  would  be  enacting  an  ex  post 
facto  lazv.     If  such  judicial  legislation   should  thereafter  be 
uniform  in  all  subsequent  cases,  the  uniformity  would  still  be  a 
matter  of  accidental  uniformity  in  the  exercise  of  arbitrary 
judicial  legislation,  and  not  a  compulsory  uniformity,  imposed 
by  definite  and  certain  legislative  enactment.     Even  under  uni- 
formity of  judicial  legislation  there  would  still  be  the  absence 
of    that    unavoidable    uniformity    which    should    result    from 
subjecting    the    judical    will    to    the    certainty    of    a    statute 
and     which     compulsory     conformity     is     an     indispensable 
requirement  of  "law,"  and  of  "due  process  of  law."     Now  let 
us  inquire  how  this  interpretation  of  the  historical  events  shall 
harmonize  with  the  views  of  the  early  writers,  interpreting  the 
charter  phrases  which  were  incorporated  into  our  constitution. 
Here  let  it  be  remembered  that  our  constitutional  guarantee  of 
"due  process  of  law"  was  adopted  after  most  of  the  following 
construction  had  been  placed  upon  the  word  "law."  and  prob- 
ably because  of  these  constructions. 

THE   E.\RLY    L.\W    WRITERS   OX   THE   MEANING   OF   "l.^W." 

"Every  law  may  be  said  to  consist  of  several  parts:  One 
declaratory,  whereby  the  right  to  be  observed,  and  the  wrong 
to  be  eschewed,  are  clearly  defined  and  laid  down." 

Blackstone  in  his  Introduction,  Rook  i.  p.  53. 

Although  there  is  much  in  Montesquieu's  "Spirit  of  the 
Laws"  that  we  have  outgrown,  yet  he  was  the  precursor  of 
most  that  is  good  in  modern  political  institutions,  and.  as  it 
appears  by  the  frequent  references  to  him  in  The  Federalist, 

37 


his  book  did  much  to  shape  our  own  constitution.  It  is  nearly 
two  centuries  since  he  wrote : 

'•Under  moderate  governments,  the  law  is  prudent  in  all 
its  parts,  and  perfectly  well  known,  so  that  even  the  pettiest 
magistrates  are  capable  of  following  it.  But  in  a  despotic 
state,  when  the  prince's  will  is  the  law ;  though  the  prince  were 
wise,  yet  how  could  the  magistrate  follow  a  will  he  does  not 
know?  He  must  certainly  follow  his  own.  [p.  79.]  In  des- 
potic governments  there  are  no  laws,  the  judge  himself  is  his 
own  rule.  [p.  92.]" 

V.  I,  "Spirit  of  the  Law."     Pages  are  from  the  Aldine  Ed. 

The  following  words,  also  from  Montesquieu,  show  what 
the  contest  for  certainty  of  the  law  meant  with  special  refer- 
ence to  intellectual  crimes,  and  with  a  very  few  verbal  changes, 
will  be  seen  to  bear  with  unusual  force  against  the  validity 
of  our  present  obscenity  laws.  He  said :«  "Nothing  renders  the 
crime  of  high  treason^  .[o-nd  wai^aayradd-ebee^tyy^  more  arbi- 
trary  than  declaring  people  guilty  of  it  for  indiscreet  speeches. 
Speech  is  so  subject  to  interpretation ;  there  is  so  great  a 
difference  between  indiscretion  and  malice ;  and  frequently  little 
is  there  of  the  latter  in  the  freedom  of  expression,  that  the  law 
can  hardly  subject  people  to  a  capital  punishment  for  words 
unless  it  expressly  declares  what  zvords  they  are.  Words  do 
not  constitute  an  overt  act ;  they  remain  only  in  idea.  When 
considered  by  themselves,  they  have  generally  no  determinate 
signification,  for  this  depends  on  the  tone  in  which  they  are 
uttered.  It  often  happens  that  in  repeating  the  same  words 
they  have  not  the  same  meaning;  this  depends  on  their  con- 
nection with  other  things,  and  sometimes  more  is  signified  by 
silence  then  by  any  expression  whatever.  Since  there  can  be 
nothing  so  equivocal  and  ambiguous  as  all  this,  how  is  it 
possible  to  convert  it  into  a  crime  of  high  treason?  Wher- 
ever this  lazv  is  established,  there  is  an  end  not  only  of  liberty, 
but  even  of  its  very  shadoiv."  ''•  ' 

The  Spirit  of  the  Law,  v.  i,  p.  232,  Aldine  Edition. 

Beccaria,  who  profited  by  studying  Montesquieu,  also  elab- 
orates this  theme  of  the  necessity  of  certainty  of  law  as  a 
condition  of  liberty.    In  part  he  wrote  as  follows: 

"Judges,  in  criminal  cases,  have  no  right  to  interpret  the 
penal  laws,  because  they  are  not  legislators.  They  have  not 
received  the  laws  from  our  ancestors  as  a  domestic  tradition,  or 
as  the  will  of  a  testator,  which  his  heirs,  and  executors,  are  to 

38 


obey;  but  tlicy  receive  them  from  a  society  actually  existing, 
or  from  the  sovereign,  its  representative.  *  *  *  There  is 
nothing  more  dangerous  than  the  common  axiom;  the  spirit 
of  the  laws  is  to  be  considered.  To  adopt  it  is  to  give  way  to 
the  torrent  of  opinions.  This  may  seem  a  paradox  to  vulgar 
minds,  which  are  more  strongly  alTected  by  the  smallest  dis- 
order before  their  eyes,  than  by  the  most  pernicious,  though 
remote,  consequence  produced  by  one  false  principle  adopted 
by  a  nation.  IFhcn  the  rule  of  right  which  ought  to  direct  the 
actions  of  the  philosopher,  os  zvell  as  the  ignorant,  is  a  matter 
of  controversy,  not  of  fact,  the  people  are  slaves  to  the  magis- 
trate. If  the  poiver  of  interpreting  laws  he  an  evil,  obscurity 
in  them  must  he  another,  as  the  former  is  the  consequence  of 
the  latter.  This  evil  will  be  still  greater,  if  the  laws  be  written 
in  a  language  unknown  to  the  people;  who,  being  ignorant 
of  the  consequences  of  their  own  actions,  hecome  necessarily 
dependent  on  a  few,  who  are  interpreters  of  the  laws,  which 
instead  of  being  public,  and  general,  are  thus  rendered  private 
and  particular.  If  this  magistrate  should  act  in  an  arbitrary 
manner,  and  not  in  conformity  to  the  code  of  laws,  which 
ought  to  be  in  the  hands  of  every  member  of  the  community, 
he  opens  a  door  to  tyranny,  which  always  surrounds  the  con- 
fines of  political  liberty.  /  do  not  know  of  any  exception  to 
this  general  axiom,  that  every  member  of  society  should 
know  when  he  is  criminal,  and  when  innocent.  If  censors,  ami, 
in  general,  arbitrary,  magistrates,  be  necessary  in  any  govern- 
ment, it  proceeds  from  some  fault  in  the  constitution.  The 
uncertainty  of  crimes  hath  sacrificed  more  victims  to  secret 
tyranny,  than  have  ever  suffered  by  public  and  solemn  cruelty." 

"No  Magistrate  then  (as  he  is  one  of  the  society)  can, 
with  justice,  inflict  on  any  other  member  of  the  same  society, — 
punishment  that  is  not  ordained  by  lazv.  Judges  in  criminal 
cases  have  no  right  to  interpret  the  penal  laws  because  thev 
are  not  legislators.  Who  then  is  their  lawful  interpreter?  The 
sovereign  that  is  the  representative  of  society,  and  not  the 
judge,  zvhose  office  is  only  to  examine  if  a  man  have  or  have 
not  committed  an  action  contrary  to  the  law." 

An  Essay  on  Crimes  and  their  Punishment.  (Edition  of 
1775)  PP-  12-41. 

An  American  commentator  writing  before  the  Revolution 
defines  "The  law  of  the  land"  to  mean  by  the  common  law 
or  by  the  statute  law.  by  the  due  course  and  process  of  law." 

39 


He  quotes  Lord  Coke  as  tlius  interpreting  the  clause  in  ques- 
tion, "the  law  is  the  surest  sanctuary  that  a  man  can  take,  and 
the  strongest  fortress  to  protect  the  weakest  of  all.  *  *  * 
Xo  man  is  deceived  while  the  law  is  his  buckler.  *  *  * 
The  law  is  called  right  because  it  discovereth  that  which  is 
crooked  or  wrong;  for  as  right  signifieth  law,  so  crooked  or 
wrong  signifieth  injuries;  injury  is  against  right.  A  right 
line  is  both  declaratory  of  itself  and  the  oblique.  Hereby  the 
crooked  chord  of  that  zvhich  is  called  discretion,  appeareth  to 
be  unlaivful,  unless  you  take  it  as  it  ought  to  be,  discreti  est 
discerne  per  legam,  quid  sit  jiistniii—discvQtion  is  to  dis- 
cern by  the  law  what  is  just." 

English    Liberties,   by   Henry   Carr   and   William    Nelson, 
pp.  21  to  27.     (Providence,  R.  I.,  I774-) 
2  Coke's  Institutes,  marginal  page  56. 
"It  is  the  function  of  a  judge  not  to  make  but  to  declare 
the  law  according  to  the  golden  metewand  of  the  law,  and  not 
by  the  crooked  cord  of  discretion."     Coke. 

It  must  be  apparent  from  this  conception  of  "law"  that 
under  "due  process  of  law"  as  used  in  the  English  charters 
and  defined  before  the  days  of  our  constitution,  and  with  such 
interpretation  incorporated  into  these  constitutions,  no  man 
can  be  deprived  of  property  or  liberty  for  acts  made  criminal, 
by  any  exercise  of  power,  which  seeks  to  invest  either  Judges 
or  juries,  either  directly  or  indirectly,  with  a  discretion  to 
determine  whether  or  not  any  undisputed  act  shall  be  penalized 
but  on  the  contrary  the  very  essence  of  "lazv"  in  "due  process 
of  law,"  in  criminal  cases  at  least,  is  that  all  such  discretion 
shall  be  destroyed  by  the  very  explicitness  of  the  lazv  itself, 
and  that  all  juridical  discretion  shall  be  limited  to  discovering 
the  facts  and  discerning  solely  from  the  letter  of  the  law, 
whether  these  ascertained  facts  constitute  a  crime.  Only  thus 
can  statutes  curb  the  tyranny  of  arbitrary  judicial  power. 
Here  is  another  authoratative  statement  as  to  the  requirement  of 
the  law.  which  again  is  a  prerevolutionary  authority,  in  the 
light  of  which  our  constitutional  phrase  must  have  been 
adopted. 

V  "It  is  further  essential  to  political  freedom  that  the  lazvs 
be  clearly  obvious  to  common  understanding,  and  fully  notified 
to  the  people.  *  *  *  When  the  people  first  learn  the  law 
by  fatal  experience,  they  feel  as  if  the  judge  was  in  efifect 
legislator,  and  as  if  life  and  liberty  were  subjected  to  arbitrary 


AO 


control.  *  *  *  ff^g  same  zvill  be  the  consequences,  where 
the  law  is  imperfectly  and  indefinitly  expressed.  The  style 
thereof  should  be  clear,  and  as  concise  as  is  consistent  with 
clearness;  general  terms  also  should  be  particularly  avoided, 
as  liable  to  become  the  instruments  of  oppression.>^Under 
the  Act  14  Geo.  11  c.  6,  stealing  sheep  'Or  other  cattle,'  was 
made  felony  without  benefit  of  clergy  ;  but  those  general  words 
'or  other  cattle'  being  considered  as  too  vague  to  create  a 
capital  offence,  the  act  was  properly  holden  to  extend  only  to 
sheep." 

Lord  Auckland's,  Principles  of  Penal  Law.  p.  312-314 
(1771^- 

That  judicial  interpretation  of  "Law"  was  adopted  into 
our  constitutional  guarantee  of  "Due  Process  of  law"  and 
measured  by  that  standard,  all  uncertain  criminal  statutes 
must  be  annulled  because  not  "Lazv"  and  not  constituting  "due 
process  of  law." 

In  the  debates  of  the  English  Parliament  frequent  references 
could  be  found  in  which  certainty  of  the  law  is  advocated. 
(See  4  Parliamentary  History,  pp.  115-117-118  for  illustrations) 
In  1792  (Stat.  32  Geo.  iii,  c.  60)  was  passed  the  act  which 
in  cases  of  criminal  libel  made  the  jury  the  judge  of  both  law 
and  fact.  Before  this  (in  1784)  an  English  court  denounced 
uncertainty  of  the  law  of  libels  or  its  administration  in  no  un- 
certain terms.  Here  is  the  language  officially  reported. 
V''  "Miserable  is  the  condition  of  individuals,  dangerous  is 
the  condition  of  the  state,  if  there  is  no  certain  law.  (or  which 
is  the  same  thing)  no  certain  administration  of  law,  to  protect 
individuals  or  to  guard  the  state.  *  *  *  Under  such  an 
administration  of  the  law  no  man  could  tell,  no  counsel  could 
advise,  zvhether  a  paper  were  or  were  not  punishable..  I  am 
glad  that  I  am  not  bou)id  to  subscribe  to  such  an  absurdity, 
such  a  solecism  in  politics." 

King  v.  Dean  of  St.  Asaph,  3  Terms  Rep.  43i.«6d9ii^    \y 

If  the  English  courts  have  not  .<^o  uniformly  ignored  un- 
certain statutes  as  might  be  desired,  the  explanation  may  per- 
hapc  be  found  in  the  fact  that  Magna  Charta  is  a  limitation 
only  upon  the  soverign,  and  not  upon  Parliament,  in  the  sense 
in  which  our  American  constitutions  operate  to  limit  legis- 
lative power.  If  therefore  English  courts,  because  of  uncer- 
tainty, are  to  annul  an  enactment  of  Parliament,  the  justifica- 
tion therefore  could  be  found  only  in  the  very  nature  of  their 

41 


institutions,  without  any  fundamental  written  authority  mak- 
ing sucli  natural  law  a  limitation  upon  legislative  power. 

THE    MAXIM    REQUIRING   CERTAINTY. 

From  such  solicitude  for  that  liberty  which  ever  depends 
upon  the  certainty  of  meaning  in  the  criminal  statute  came 
the  ancient  maxim:  "Ubi  jus  incertum,  ibi  jus  nullum — 
where  the  law  is  uncertain,  there  is  no  law." 

Black's  Law  Dictionary,  p.  1196. 

Bouvier's  Law  Dictionary,  Rawl's  Revision  v.  2,  p.  381. 

Here  it  is  important  that  we  examine  a  little  farther  into 
the  importance  of  maxims  in  general  and  this  last  one  quoted 
in  particular;  "All  great  judges  and  writers  have  been  led  by 
maxims.  *  '■■-  *  Where  the  maxims  lead  and  illumine 
the  great  ends  of  jurisprudence  have  been  advanced;  constitu- 
tions and  their  implications  have  been  respected.  Judges  who 
understand,  respect  and  cite  maxims,  save  great  principles  from 
clouds  of  doubt  and  miserable  equivocation.  *  *  *  No- 
thing more  greatly  obstructs  usurpation-abuse  of  power-and 
arbitrariness  in  its  edicts  than  do  maxims.  *  *  *  All 
of  the  admittedly  authentic  maxims  are  expressions  of  mercy, 
reason  and  moderation,  and  are  often  highly  Christian  in 
spirit  and  suggestion.  Lovers  of  liberty  consecrate  the  max- 
ims, oppressors  desecrate  them  *  *  *  Maxims  are  the  con- 
densed good  sense  of  all  nations.  They  are  the  essence  of  wis- 
dom in  all  ages.  Whenever  the  law  is  the  perfection  of  reason, 
they  are  not  excluded  but  they  must  necessarily  be  included. 
Jurisprudence  can  lay  claim  to  no  other  element  so  lustrous,  so 
illuminating  and  attractive,  as  its  great  fundamental  maxims." 
Hughes  on  Procedure  v.  2,  pp.  1003-1007. 
Coke  on  Littleton,  11,  a.  (marginal). 

Upon  the  subject  of  the  particular  maxim  with  which  we 
are  now  concerned,  namely  "where  the  law  is  uncertain  there 
is  no  law,"  Mr.  Hughes,  among  other  things,  has  this  to  say, 
all  of  which  is  applicable  to  our  present  judicially  enacted 
tests  of  the  "obscene,  indecent,  filthy  and  disgusting"  litera- 
ture and  art. 

V  "Where  the  rule  is  alternating,  as  antipathy  and  affection, 
caprice  or  whim  dictates,  there  is  no  law.  And  so  it  is  where 
for  one  the  foundation  for  a  judgment  must  be  one  kind  of 
matter,   and   for   another,   a  diflferent.     Where    for  one  there 

42 


must  be  allegations  and  proofs  and  for  aimiluT  anythinf^,  even 
palpably  sbam  and  false  statements." 

Concerning  jurisprudence,  he  says:  "Its  value  depends  on 
a  fixed  and  uniform  rule  of  action.  *  *  *  If  water  at  one 
time  would  extinguish  fire  and  at  another  would  si)read  a  con- 
llagration  ;  if  on  one  day  it  would  bring  life  and  the  next 
death,  its  value  would  be  destroyed.  *  '"  ="  And  so  it  is  in 
language,  when  words  have  no  fixed  meaning.  *  *  * 
Those  wdio  rule  in  disregard  of  obligation  and  reason,  may  be 
likened  to  the  sailor  who  bores  a  hole  in  the  ship,  upon  which 
the  safety  of  all  depends." 

Hughes  on  Procedure,  v.  2  p.  1237. 

POST    RKVOLUTIONAKV     DISCUSSION    ON     KKQUIRKM  ENTS    OF    THE 

LAW. 

Alexander  Ilamilton  in  discussing  this  subject,  among  other 
things,  wrote:  "I  agree  [with  Montesquieu]  that  there  is  no 
liberty  if  the  power  of  judging  be  not  separated  from  the  leg- 
islative and  executive  powers,  fp.  484.]  To  avoid  an  arbi- 
trary discretion  in  the  courts,  it  is  indispensable  that  they  should 
be  bound  down  by  strict  rules  and  precedents,  which  serve  to  -A/ 
define  and  point  out  their  duty  in  every  particular  case  that  >- 
comes  before  them  ;  *  *  *  The  creation  of  crimes  after 
the  commission  of  the  fact,  or,  in  other  words,  the  subjecting 
of  men  to  punishment  for  things  which  when  they  were  done, 
were  breaches  of  no  law  [or  could  not  have  been  ascertained 
to  be  such  because  of  the  uncertainty  of  the  statute]  :  and  the 
practice  of  arbitrary  imprisonment  have  been  in  all  ages  the 
favorite  and  most  formidable  instruments  of  tyranny,  [p.  490.] 
The  courts  must  declare  the  sense  of  the  law;  and  if  they 
should  be  disposed  to  exercise  will  instead  of  judgment,  the 
consequence  would  equally  be  the  substitution  of  their  jileasure 
to  that  of  the  legislative  body."     [p.  487.] 

Hamilton  in  "The  Federalist,"  pages  as  indicated  above. 

'Tt  is  law  which  has  hitherto  been  regarded  in  countries 
calling  themselves  civilized,  as  the  standard,  by  which  to 
measure  all  offences  and  irregularities  that  fall  under  public 
animaversion.  *  *  *  j|.  |"^i-,g  law]  has  been  recommended 
as  'affording  information  to  the  different  members  of  the  com- 
munity respecting  the  principles  which  will  be  adopted  in  de- 
ciding  upon   their   actions.      Tt    has   been    rei)rescnted    as   the 

43 


Q 


highest  degree  of  inequit}-  to  try  men  by  ex  post  facto  law,  or 
indeed  in  any  other  manner  than  by  the  letter  of  a  law,  for- 
mally made  and  sufficiently  promulgated.'  " 

2     Godwin's  Political  Justice,  p.  289.     (A.  D.,  1796.) 

Prof.  Thomas  Cooper  quotes  with  approval  the  following 
words  of  Richard  Carlyle  (about  A.  D.,  1820),  which  have 
as  direct  and  certain  applications  to  the  uncertain  meaning  of 
"obscene"  as  to  the  uncertainty  about  the  meaning  of  "blas- 
phemy" or  "Christianity."  Carlyle  wrote  :  "Xo  one  can  under- 
stand what  is  meant  by  blasphemous  publications,  or  by 
Christianity :  and,  what  no  one  can  understand,  no  law  can 
justly  take  cognizance  of,  or  support." 

Laws  of  Libel  and  Liberty  of  the  Press,  p.  157. 

In  1884  Sir  Fitz-James  Stephens,  of  the  court  of  King's 
Bench,  seems  almost  to  agree  with  Carlyle.  In  the  course  of 
an  argument  for  the  repeal  of  all  statutes  against  blasphemy, 
which  he  refers  to  as  "an  admitted  blemish  in  the  existing 
law,"  and  as  "essentially  and  fundamentally  bad,"  he  points 
out  the  irreconcilable  conflict  in  the  various  judicial  tests  of 
guilt  in  blasphemy  prosecutions,  and  reducing  the  uncertainty 
of  some  of  these  to  an  absurdity,  he  describes  them  "as  desti- 
tute of  that  manly  simplicity  which  ought  to  be  the  charac- 
teristics of  the  law.  There  is  no  reason  why  the  law  should 
be  so  indistinct." 

See,  "Blasphemy  and  Blasphemous  Libel,"  41  Fortnightly 
Reznew,  289-314,  March,  1884. 

Unfortunately  in  England  there  is  no  constitutional  limita- 
tion upon  the  power  of  Parliament  such  as  would  preclude 
the  enactment  of  uncertain  laws.  What  Sir  Fitz-James  Ste- 
phens contends  for  as  a  matter  of  wisdom  to  be  acted  upon  by 
the  Parliament,  in  America  is  a  constitutionally  guaranteed 
right. 

Edward  Livingston,  a  U.  S.  Senator,  Secretary  of  State 
under  Pres.  Jackson,  and  Minister  to  France,  reputed  to  be 
one  of  the  greatest  American  lawyers  of  his  time,  in  1822 
wrote  these  words:  "This  dreadful  list  of  Judicial  cruelties 
was  increased  by  legislation  of  the  judges  who  declared  acts 
which  were  not  criminal  under  the  letters  of  the  law,  to  be 
punishable  by  reason  of  its  spirit.  The  statute  gave  the  text 
and  the  tribunals  wrote  the  commentary  in  letters  of  blood, 
and  extended  its  penalties  by  the  creation  of  constructive  of- 
fenses.   The  vague,  and  sometimes  unintelligible  language,  em- 

44 


ployed  in  llic  penal  statutes,  p^ave  a  color  of  necessity  to  this 
assumption  of  power,  and  the  EngHsh  nation  have  submitted 
to  the  legislation  of  its  courts,  and  seen  their  fellow  subjects 
hanged  for  constructive  felonies,  quartered  for  constructive 
treason,  and  roasted  alive  for  constructive  heresies,  with  a  pa- 
tience that  would  be  astonishing,  even  if  their  written  laws  had 
sanctioned  the  butchery.  TJie  first  constructive  extension  of  a 
penal  statute  beyond  its  letter,  is  an  ex  post  facto  law,  as  re-  '  ~^ 
gards  the  offense  to  which  it  is  applied,  and  is  an  illegal  as-  '^ 
sumption  of  Icgislatiiic  p07K'cr,  so  far  as  it  establishes  a  rule 
for  further  decisions.  In  our  republic  where  the  different  de- 
partments of  government  are  constitutionally  forbidden  to  in- 
terfere with  each  other's  functions,  the  exercise  of  this  power 
would  be  particularly  dangerous.  *  *  *  jt  jyjay  be  proper 
to  observe  that  the  fear  of  these  consequences  is  not  ideal,  and 
that  the  decisions  of  all  tribunals  under  the  common  lazv, 
justify  the  belief  that  zvithout  some  legislative  restraint  our 
courts  would  not  be  more  scrupulous  than  those  of  other  coun- 
tries, in  sanctioning  this  da}igerous  abuse,  fp.  17-18].  It  is 
better  that  acts  of  an  evil  tendency,  should  for  a  time  be  done 
with  impunity  than  that  courts  should  assume  legislative  pow- 
ers, which  assumption  is  itself  an  act  more  injurious  than  any 
it  may  purport  to  repress.  There  are  therefore  no  construc- 
tive ofTenses.  '[p.  I18.]  Penal  laws  should  be  written  in  plain 
language,  clearly  and  unequivocally  expressed,  that  they  may 
neither  be  misunderstood  or  perverted.  \  *  *  *  The  ac- 
cused in  all  cases  should  be  entitled  to  a  public  trial,  con- 
ducted by  known  rules,"  etc.     (p.  113). 

"Report  made  to  the  General  Assembly  of  the  State  of 
Louisiana  on  the  plan  of  a  Penal  Code."  by  Edward  Living- 
ston, at  pages  as  indicated  in  the  text. 

At  the  time  when  Livingston  wrote,  Puritan  prudery  had 
scarcely  made  a  beginning  toward  its  legalization.  L'nder  the 
common  law  of  England  before  the  revolution  "obscenity"  in 
literature  had  only  been  punished  when  it  was  incidental  to 
treasonable  or  blasphemous  utterances.  Some  American 
judges,  with  that  peculiar  intellectual  capacity  which  enables 
them  without  research  to  determine  historical  facts  of  the  past 
on  the  mere  testimony  of  their  inner  consciousness  have  often 
asserted  the  contrary,  but  the  fact  remains  that  prior  to  the 
Revolution  there  is  no  recorded  case  of  punishment  for  an  ob- 
scene hbel  wherein  the  obscenity  of  the  publication,  merely  as 

45 


such  obscenity  and  disassociated  from  treason  and  blasphemy, 
was  ever  punished. 

"Obscene  Literature  under  the  Common  Law."  Albany 
Law  Journal,  May,  1907. 

Notwithstanding  the  total  absence  of  such  precedents  as 
now  justify  the  outrage  of  suppressing  the  human  nude  in  art, 
and  even  the  scientific  discussion  of  sex  problems,  and  the 
further  fact  that  at  his  time  sexual  psychology  was  not  yet 
thought  of,  and  could  give  no  information  such  as  we  now 
have  to  prove  the  uncertainty  or  nature  of  our  conception  of 
the  "obscene  and  indecent,"  yet  Edward  Livingston's  keen 
intellect  foresaw  the  danger,  merely  as  an  incident  of  the  un- 
certainty which  attaches  to  ethical  sentimentalizing  and  its 
verbal  vagueness.  In  about  1820  he  wrote  to  M.  Duponceau  a 
very  distinguished  lawyer  of  his  time  as  follows: 

"I  am  in  a  difficulty,  and  as  it  is  one  arising  out  of  a  ques- 
tion of  jurisprudence,  I  know  no  one  to  whom  I  can  apply  for 
assistance,  with  so  sure  a  hope  of  relief,  as  from  you.  In  the 
revision  of  my  criminal  code,  I  have  now  under  consideration 
the  chapter  of  offenses  against  public  morals.  This  is  in- 
tended to  comprehend  all  that  class  which  the  English  jurists 
have  vaguely  designated  as  oft"ences  contra  bonos  mores,  find- 
ing it  much  easier  in  this,  as  they  do  in  many  other  cases,  to 
give  a  Latin  phrase,  which  may  mean  anything,  rather  than  a 
definition.  I  have  serious  thoughts  of  omitting  it  altogether, 
and  leaving  the  whole  class  of  indecencies  to  the  correction  of 
public  opinion.  I  have  been  led  to  this  inclination  of  mind  (for 
as  yet  I  have  formed  no  decision)  from  the  examination  of 
the  particular  acts  which  in  practice  have  been  brought  under 
the  purview  of  this  branch  of  criminal  jurisprudence.  In  the 
absence  of  anything  like  principle  or  definition,  I  was  obliged 
to  have  recourse  to  not  only  precedent,  but  to  the  books  of 
precedents,  and  they  strongly  reminded  me  of  some  forms 
which  I  have  seen  in  Catholic  church  books,  of  questions  which 
are  to  be  put  to  the  penitent  by  the  professor,  in  which  every 
abomination  that  could  enter  into  the  imagination  of  a  monk 
is  detailed,  in  order  to  keep  the  mind  of  a  girl  of  fifteen  free 
from  pollution!  Turn  to  any  indictment  of  this  kind  in  the 
books,  for  the  publication  of  obscene  books  or  prints,  or  for 
indecency  of  behavior,  and  you  will  find  the  innuendos  and 
exposition  of  the  offence  infinitely  more  indecorous,  more  open 
violation  of  decency,  than  any  of  the  works  they  are  intended 

46 


to  punish  and  repress.  The  evidence  must  be  of  the  same 
nature,  and  hundreds  will  hear  the  trial  who  never  would 
have  seen  the  book  or  print.  The  evil  is  inevitable,  if  such 
acts  are  punished  by  law. 

"There  is  another  evil  of  no  less  magnitude,  arising  from 
the  difficulty  of  defining  the  offence.  L'se  the  general  expres- 
sion of  the  English  law,  and  a  fanatic  judge,  with  a  like- 
minded  jury,  will  bring  every  harmless  levity  under  the  lash 
of  the  law.  Sculpture  and  painting  will  be  banished  for  their 
nudities,  poetry  for  the  warmth  of  its  description,  and  music, 
if  it  excite  any  forbidden  passion,  will  scarcely  escape. 

"On  the  whole,  I  am  surrounded  by  difficulties.  Help  me 
to  a  definition  that  shall  include  what  ought  to  be  punished, 
and  not  give  room  for  the  abuse  I  have  pointed  out.  Let  me 
know  how  I  shall  decently  accuse  and  try  a  man  for  indecency, 
or  else  fortify  me  in  my  opinion  of  letting  public  opinion  pro- 
tect public  morals." 

"Life  of  Edw.  Livingston,"  bv  Charles  Havens  Hunt.  p. 
289,  N.  Y.,  1864. 

It  was  a  keen  mind  which  could  thus  foresee  what  is  now 
being  done.  His  demand,  for  a  detinition  which  defines,  is 
still  unanswered. 

IN  CONCLUSION. 

Thus  far  we  have  examined  the  statements  of  those  persons 
without  whose  warfare  against  tyranny  we  would  to-day  enjoy 
less  liberty  than  is  permitted  us.  We  have  everywhere  found 
that  the  necessity  for  law  arises  from  the  fact  of  everyday  ex- 
perience that  frail  human  beings  cannot  lose  their  weakness 
by  receiving  judicial  office,  and  that  because  of  this,  we  must 
submit  to  the  penalties  which  may  be  determined  by  whim, 
caprice,  prejudice,  moral  idiosyncrasies  and  sentimentalism.  or 
even  malice,  unless  the  judge's  will  is  always  held  in  subjec- 
tion to  the  same  law  which  is  designed  to  warn  all  others  and 
restrains  the  conduct  to  be  punished.  We  have  also  seen  that 
it  was  the  desire  to  achieve  this  result,  which  prompted  the 
demand  for  the  English  Charters  of  liberty,  and  we  know  the 
terrible  havoc  which  has  resulted  from  the  neglect  of  this  re- 
quirement that  the  laws  should  be  certain.  Furthermore  we 
have  seen  how  the  judge  who  insisted  on  the  charter-rights, 
refused  to  enforce,  except  as  to  sheep,  a  statute  penalizing  the 

-17 


theft  of  sheep  "or  other  cattle"  because  the  word  "cattle" 
was  too  vague,  and  since  it  required  judicial  legislation  to  make 
it  certain  it  could  not  be  "the  law  of  the  land."  It  was  after 
that  construction  of  "law,"  and  with  it,  that  we  adopted  our 
constitutions  guaranteeing  "Due  Process  of  Law." 

I  therefore  conclude  that  the  historical  interpretation  of  the 
word  "law."  is  in  accord  with  its  significance  as  derived  from 
a  study  of  its  essential  nature  (see  first  essay  herein),  and 
that  among  other  qualities  which  must  inhere  in  every  penal 
statute,  in  the  absence  of  which  it  cannot  be  "the  law,"  nor 
constitute  "due  process  of  law"  is  that  of  certainty  in  the  de- 
scription of  the  conduct  penalized.  In  other  words,  according 
to  the  historical  interpretation  of  "law,"  '*No  penal  law  can 
be  sustained  unless  its  mandates  are  so  clearly  expressed  that 
any  ordinary  person  can  determine  in  advance  what  he  may 
or  may  not  do  under  it,"  and  by  that  test  all  statutes  against 
"obscene,  indecent,  filthy  or  disgusting"  literature  and  art, 
and  a  large  number  of  other  statutes  similarly  vague,  fail  to 
constitute  "Due  Process  of  Law." 


48 


CERTAINTY  REQUIRED   15 Y  MODERN 
AUTHORITIES. 

The  modern  authorities  are  quite  as  definite  as  the  older 
ones  in  insisting  upon  absohite  certainty  in  the  definition  of 
that  which  is  penalized.  This  makes  it  all  the  more  surprising 
that  no  one  has  thought  to  apply  the  rule  of  these  cases  for  the 
destruction  of  the  innumerable  prosecutions  under  statutes 
equally  as  uncertain  as  those  against  "obscenity."  The  rule 
by  which  such  statutes  must  all  be  annulled  is  this :  that  every 
statute  penal  in  character  is  void  for  uncertainty  unless  the  pro- 
hibited conduct  and  criteria  of  guilt,  are  defined  in  the  statute 
by  words  so  fixed  and  certain  in  meaning  as  to  leave  no  reason- 
able doubt,  or  difference  of  opinion,  in  the  minds  of  any  man  of 
ordinary  intelligence  as  to  what  is  prohibited,  or  as  to  the  conse- 
quence of  applying  the  statutory  criteria  of  guilt  to  every  given 
state  of  facts.  If  the  statutory  test  of  criminality  is  uncertain, 
and  therefore  left  to  be  judicially  supplied,  so  that  in  any  case, 
or  any  considered  number  of  cases,  a  uniform  conclusion  is 
not  unavoidably  reached  by  different  courts  acting  upon  the 
same  state  of  facts,  which  uniformity  must  be  reached  solely 
by  accurate,  unavoidable  and  uniform  deduction  made  from  the 
statutory  tests  of  criminality  (not  by  tests  which  are  judicially 
created),  then  the  statute  is  a  nullity. 

These  principles  are  plain  enough  and  whenever  applied  to 
laws  as  uncertain,  for  example,  as  those  against  "obscene" 
literature  and  art,  the  application  must  result  in  their  being  de- 
clared unconstitutional,  because  not  "law"  nor  "due  process  of 
law."  No  court  has  yet  been  asked  to  .so  apply  these  rules  to 
statutes  against  "obscene"  literature,  and  yet,  in  several  cases 
the  judges  on  their  own  motion  seem  to  have  come  very  near  to 
their  annullment.  These  opinions  will  be  quoted  later  when  we 
come  to  suggest  some  applications  of  the  principle  under 
discussion. 

With  these  few  words  of  introduction  we  will  proceed  to  a 
mere  compilation  of  authoritative  utterances  bearing  upon  the 

49 


^ 


requirement  of  statutory  certainty.  Most  of  these  quotations 
are  from  cases  construing  punitive  statutes.  In  others,  how- 
ever, we  find  the  principle  definitely  applied  to  the  end  of  de- 
claring uncertain  statutes  to  be  unconstitutional.  First  will 
be  collected  some  of  the  authorities  which  show  that  the  his- 
torical interpretation  of  "law,"  which  requires  certainty  in  the 
meaning  of  penal  statutes  before  they  can  constitute  "law,"  was 
perpetuated  by  our  constitutional  guarantees  of  "Due  Process 
of  Law."  After  that  will  be  quoted  some  judicial  opinions 
which  specifically  declare  that  the  destruction  of  all  arbitrari- 
ness of  courts,  by  the  certainty  of  meaning  in  the  statutory 
statement  of  the  criteria  of  guilt,  is  a  prerequisite  without 
which  penal  statutes  do  not  furnish  "Due  Process  of  Law." 

For  the  benefit  of  the  lazy  and  the  very  busy  man,  I  violate 
my  ideals  of  what  a  legal  argument  ought  to  be  and  pursue  the 
method  of  merely  compiling  quotations  from  judicial  opinions, 
which  are  deemed  more  or  less  material  to  the  contention  which 
I  am  making.  If  I  merely  cited  the  opinions  instead  of  quoting 
them,  I  fear  not  many  of  them  would  be  read. 

THE   HISTORICAL   AND   SCIENTIFIC    INTERPRETATION    OF 
"law"    is    perpetuated    by    our    CONSTITUTIONS. 

In  reading  the  following  quotations  it  is  necessary  always 
to  bear  in  mind  that  the  "settled  maxims" — "the  principles 
which  were  before  the  constitutions" — "the  ancient  rights  and 
liberties  of  the  subject,"  from  the  time  of  Magna  Charta  down, 
always  included  the  protection  of  those  accused  of  crime,  by 
insi stance  upon  the  maxim  "Ubi  jus  incertum,  ibi  jus  nullum," 
(where  the  law  is  uncertain  there  is  no  law). 

"Due  process  of  law"  means  "an  exercise  of  the  powers  of 
government  as  the  settled  maxims  of  the  lazv  permit  and  sanc- 
tion, under  such  safeguards  as  these  maxims  prescribe  for  the 
class  of  cases  to  which  the  one  in  question  belongs." 

State  V.  Board  of  Med.  Exams.  34  Minn.  387-389,  Meyer's 
Vested  Rights,  p.   196. 

"Even  in  judicial  proceedings  we  do  not  ascertain  from  the 
constitution  what  is  lawful  process  but  we  must  test  their 
action  by  principles  zvhicli  zvere  before  the  constitution  and 
the  benefit  of  which  we  assume  that  the  constitution  was  in- 
tended to  perpetuate." 

Weimer  v.  Bunbury,  30  Mich.,  301   (213). 
State  V.  Doherty,  60  Me.,  504. 

50 


"  1  lic'se  phrases  |()f  the  C Dn^titution  |  i\u\  not  mean  merci- 
ful nor  even  just  laws  hut  they  did  mean  equal  and  ^'eneral 
laws,  fixed  and  certain.  *  *  *  The  English  colonies  in 
America  were  familiar  with  the  conflict  hctween  customary 
law  and  arbitrary  prerogative  and  claimed  the  protection  of 
these  charters.  When  they  came  to  form  independent  gov- 
ernments, they  sought  to  guard  against  arbitrary  and  unequal 
governmental  action  by  inserting  the  same  phrase  in  their 
constitutions.  *  *  *  j^  ^^^^  ^^^^  follow  that  every  statute 
is  'the  law  of  the  land,'  nor  that  every  process  authorized  by 
a  legislature  is  'due  process  of  law.'  " 

Eames  v.  Savage,  jy  Me.,  212  (220,  221),  1885.  Meyer's 
Vested  Rights,  p.  192. 

"No  man  shall  be  arrested,  imprisoned  or  exiled  or  de- 
prived of  his  life,  liberty  or  estate,  but  by  the  judgment  of  his 
peers,  or  the  law  of  the  land,  is  so  manifestly  conformable  to 
the  words  of  Magna  Cliarta,  that  we  are  not  to  consider  it  as  a 
newly  invented  phrase,  first  used  by  the  makers  of  our  consti- 
tution, but  we  are  to  look  at  it  as  the  adoption  of  one  of  the 
greatest  securities  of  private  right,  handed  down  to  us  among 
the  liberties  and  privileges  which  our  ancestors  enjoyed  at  the 
time  of  their  emigration,  and  claimed  to  hold  and  retain  as 
their  birth  right.  These  terms,  in  this  connection,  cannot,  we 
think,  be  used  in  their  most  bold  and  literal  sense,  to  mean  the 
law  of  the  land  at  the  time  of  the  trial,  because  the  laws  may 
be  shaped  and  altered  by  the  legislature  from  time  to  time ;  and 
such  a  provision,  intended  to  prohibit  the  making  of  any  law 
impairing  the  ancient  riglits  and  liberties  of  the  subject,  would 
under  such  a  construction  be  wholly  nugatory  and  void.  The 
legislature  might  simply  change  the  law  by  statute,  and  thus 
remove  the  landmark  and  barrier  intended  to  be  set  up  by  this 
provision  in  the  bill  of  rights.  Tt  must  therefore  have  intended 
the  ancient  established  law  and  course  of  legal  proceedings,  by 
an  adherence  to  which  our  ancestors  in  England,  before  the 
settlement  of  this  country,  and  the  emigrants  themselves  and 
their  descendants,  had  found  safety  for  their  personal  rights." 

Jones  V.  Robbins,  8  Gray  (74  Mass.),  329  (342.  343), 
Meyer's  Vested  Rights,  195. 

This  would  include  the  requirement  of  certainty  in  tests 
of  guilt,  as  laid  down  by  Coke,  Blackstone  and  others,  as 
quoted  in  the  "Historic  Interpretation  of  T^w.' "  and  the 
maxim,  "where  the  law  is  uncertain  there  is  no  law." 


•'By  'due  process  of  law'  is  meant  such  general  and  legal 
forms  and  course  of  proceeding  as  were  known  either  at  com- 
mon law  or  were  generally  recognized  at  the  time  of  the 
adoption  of  the  provision."' 

Gibson  v.  Mason,  5  Nev.,  283  (302). 
McCarrol  v.  Weeks,  5  Hayw.  (Tenn.),  246. 

"The  words  'due  process  of  law,'  w^ere  undoubtedly  in- 
tended to  convey  the  same  meaning  as  the  words  'by  the  law 
of  the  land'  in  Magna  Charta.  Lord  Coke  in  his  commentary 
on  these  words  (2  Inst.,  50)  says  they  mean  due  process  of 
law.  It  is  manifest  that  it  was  not  left  to  the  legislative  power 
to  enact  any  process  wdiich  might  be  devised.  The  article  is  a 
restraint  on  the  legislative  as  well  as  the  executive  and  judicial 
powers  of  the  government,  and  cannot  be  so  construed  as  to 
leave  congress  free  to  make  any  process  "due  process  of  law,' 
by  its  mere  will.  We  must  look  to  those  settled  usages  and 
modes  of  proceedings  existing  in  the  common  and  statute  law 
of  England,  before  the  emigration  of  our  ancestors  and  which 
are  shown  not  to  have  been  unsuited  to  their  civil  and  political 
conditions,  by  having  been  acted  on  by  them  after  the  settle- 
ment of  this  country." 

Murrv  v.  Hoboken,  etc.,  18  How.,  272  (276),  (U.  S., 

1855). 

Davidson  v.  New  Orleans,  96  U.  S.,  97  (1877). 
These  authorities  sufficiently  show  that  the  Federal  and 
State  constitutions  guaranteeing  "Due  Process  of  Law," 
adopted  the  conception  of  "Law"  which  requires  from  the  law 
making  power  an  absolute  certainty  in  the  statement  of  its 
criteria  of  guilt,  before  a  penal  statute  is  the  law  of  the  land. 
This  still  further  vindicates  the  historical  interpretation  of 
"law"  as  herein  before  made,  and  aids  us  to  resurrect,  and  re- 
vivify the  ancient  maxim.  "Where  the  law  is  uncertain  there 
is  no  law."  It  is  hoped  that  thus  may  be  destroyed  all  those 
tyrannous  laws,  whose  meanings  no  one  knows  until  after  trial, 
and  as  to  which  no  lawyer  can  advise,  because  they  are  born 
of  a  stupid  moral  sentimentalism,  by  those  whose  dense  ig- 
norance of  the  meaning  of  law  and  liberty  is  evidenced  in  the 
fact  that  mere  question-begging  vituperative  epithets,  so  often 
expressing  only  diseased  emotions,  supplant  the  necessary 
statutory  definitions  of  that  which  is  prohibited.  Next  we  will 
examine  the  judicial  utterances  in  so  far  as  they  may  bear 
upon  the  required  certainty  in  statute  law. 

52 


CliRTAINTV   IN   CI\  IL  AND   POLITICAL  STATUTES. 

These  disquisitions  were  primarily  designed  to  discuss  the 
requirement  of  certainty  in  penal  statutes.  In  the  foregoing 
essays  it  seemed  necessary  to  the  clarification  of  our  thinking 
to  point  out  how  and  why  certainty  is  equally  a  requisite  of 
those  statutes  which  seek  to  do  something  else  than  merely  to 
declare  and  enforce  natural  justice.  As  confirming  that  ])art 
of  my  speculations  which  asserts  that  "law"  presupposes  the 
abolition  of  all  arbitrary  iKjwcr  such  as  unavoidably  results 
from  the  enforcement  of  uncertain  statutes,  as  well  as  to  em- 
phasize the  importance  of  the  maxim,  "Where  the  law  is  un- 
certain there  is  no  law,"  a  few  opinions  of  civil  cases  will  be 
quoted,  in  which  the  principle  of  the  maxim  is  applied  to  non- 
penal  statutes. 

"It  is  impossible  for  a  man  to  regulate  his  conduct  by  a 
rule  that  has  no  existence ;  it  therefore  follows  of  necessity 
that  laws  can  only  influence  the  conduct  of  men  after  they  are 
made." 

Davis  V.  Ballard,  i  Marshall  (Ky.),  577. 
"An  act  may  be  passed  and  published  by  legislatures  na- 
tional, state  and  territorial,  with  all  the  usual  formalities  and 
appendages,  and  yet  pronounced  no  law  when  put  to  the  judi- 
cial test.  *  +  *  Strip  this  act  of  its  outside  appendages, 
leave  it  solitary  and  alone,  is  it  possible  for  any  human  being 
to  tell  by  what  authority  the  seat  of  Government  of  Washing- 
ton Territory  was  to  be  removed  from  Olympia  to  Vancou- 
ver?" (On  the  implied  negative  the  legisltaive  act  was  an- 
nulled.) 

Seat  of  Government  Case,  i  Wash.  Ter.  Rep.,  123. 
"The  wojd  equity  in  the  oath  administered  to  the  special 
}nry,  is  synonymous  with  lazv,  and  docs  not  ]uca)i  some  undc- 
Hned  and  nn definable  1  otion  ivhich  the  jury  may  entertain  of 
the  justice  of  the  case,  but  a  system  of  jurisprudence  governed 
by  established  rules  and  bound  down  by  fixed  precedents.    The 
special  jury  is  sworn  to  try  the  cause  according  to  equity  and 
the    opinion    they    entertain    of    the    evidence,    and    not    their 
opinion  of  equity,  as  well  as  the  evidences." 
Thornton  v.  Lane,  ii  Ga.,  461-538. 
"Every  duty  becomes  such  because  the  law  makes  it  so.    It 
is  fixed  and  certain.     Unless  fixed  and  certain  it  cannot  be  a 
dutv."  said  in  civil  action  for  damages  from  negligence. 

Evansville  St.  Ry.  Co.  v.  Meadows.  13  Ind.  App.  Ct., 

159- 

53 


L 


"Unless  then  the  description  [in  an  act  of  Congress]  is  so 
clear  and  accurate  as  to  refer  to  a  particular  patent  [or  un- 
erringly describe  the  characteristics  which  make  the  book  ob- 
scene' so]  (7^  to  be  incapable  of  being  applied  to  any  other  the 
mistake  is  fatal." 

Blanchard  v.  Sprague,  Fed.  Case  15 17,  v.  3,  p.  647,  and 
cases. 

"We  cannot  make  the  language  for  the  law-making  power 
when  the  means  of  construing  the  language  used,  in  any  other 
than  its  literal  and  grammatical  sense,  is  not  furnished  by  the 
act  itself  or  unmistakably  indicated  by  the  circumstances. 
*  *  *  It  [the  legislative  act]  is  void  because  it  cannot  be 
ascertained  from  its  terms,  with  any  reasonable  certainty  what 
territory  is  assigned  to  Dallas  County." 

Bittle  V.  Stuart,  34  Ark.,  229-232. 

See  also,  Ferrett  v.  Attwill,  i  Blatchford,  157. 

Henry  v.  Evans,  97  Mo.,  47. 

These  decisions  sufficiently  demonstrate  that  as  to  those 
civil  and  political  statutes  which  create  or  enforce  artificial 
rights,  it  is  unavoidable  that  we  apply  the  old  maxim,  "Where 
the  law  is  uncertain  there  is  no  law,"  or  else  submit  to  the 
arbitrary  tyranny  of  judicial  legislation. 


THE    TEXT-BOOK    WRITERS    ON    CERTAINTY    IN    PENAL    STATUTES. 

^  "The  penal  law  is  intended  to  regulate  the  conduct  of  peo- 
ple of  all  grades  of  intelHgence  within  the  scope  of  responsi- 
bility. It  is  therefore  essential  to  its  justice  and  humanity  that 
it  be  expressed  in  language  which  they  can  easily  comprehend, 
that  it  be  held  obligatory  only  in  the  sense  in  which  all  can 
understand  it,  and  this  consideration  presses  with  increasing 
weight  according  to  the  severity  of  the  penalty.  Hence  every 
provision  affecting  any  element  of  a  criminal  offence  involving 
life  or  liberty  is  subject  to  the  strictest  interpretation.  *  *  * 
It  is  the  legislature,  not  the  court,  which  is  to  define  a  crime 
and  ordain  its  punishment."  ^ 

S^utherland,  StatwteFy-  Constrac^i*-,  ist  f'd.,tf-  438-9.  '^ 

Under  "Due  Process  of  Law"  Ordronaux  says:     "Every 

enactment  is  not  necessarily  'the  law  of  the  land.*'     *     *     * 

The  phrase  means     *     *     *     judgment   rendered   under  and 

according  to  a  general  system  of  law  which  the  community  has 

54 


established    for   the   protection   of   the   civil    rights   of   all    its 
members." 

Urdronaux's  Constitutional  Legislation  (1891),  p.  255. 

I  have  made  no  investigation  of  English  decisions,  but 
chanced  to  run  upon  the  following  expression  which  1  have 
thought  best  to  preserve  by  inserting  it  here,  though  it  will 
add  a  little  to  the  disorderly  ciiaracter  of  the  compilation  of 
this  chapter. 

"It  would  be  extremely  wrong  that  a  man  should,  by  a 
long  train  of  conclusions,  be  reasoned  into  a  penalty  when  the 
express  words  of  the  act  of  I'arlianient  do  not  authorize  it." 
Rex  V.  Bond,  i  B.  and  Aid.  at  page  392. 

THE    STATR    COURTS. 

"All  must  have  the  equal  protection  of  the  law  and  its  in- 
strumentalities. The  same  rule  must  exist  for  all  in  the  same 
circumstances,"  (which  cannot  be  the  same  if  the  criterion  of 
guilt  is  uncertain,  as  it  must  be  where  left  for  judicial  crea- 
tion). 

Chic.  St.  L.  &  R.  V.  ^loss,  60  Miss.,  641-647. 
Pearson  v.  Portland,  69  Me.,  278. 
"Words  cannot  be  imported  into  a  statute  for  the  purpose 
of  construing  it." 

State  V.  Payne,  29  Pac.  Rep.,  787. 
"The  office  of  interpretation  is  to  bring  sense  out  of  the 
words,  not  to  bring  a  sense  into  them." 

McClusky  V.  Cromwell,  11  N.  Y.  (i  Kern),  593  (602). 
All  the  judicial  "tests  of  obscenity"  violate  these  rules  of 
construction.  All  such  tests  are  in  fact  interpolated  by  un- 
authorized and  unconstitutional,  judicial  legislation,  and  vary 
according  to  the  exigencies  of  each  case  and  the  moral  idio- 
syncracies  of  each  judge. 

"By  the  'Law  of  the  Land'  is  meant,  not  the  arbitrary 
edict  of  any  body  of  men,  not  an  act  of  assembly,  though  it 
may  have  all  the  outward  form  of  law,  but  due  process  of 
law." 

Palairet's  Appeal,  67  Penn.  St.,  479   (485).     Meyer's 
Vested  Rights,  196. 
"The  rights  of  every  indiz'idnal  must  stand  or  fall  by  the 
same  rule  of  lazv  that  go7'erns  ez'cry  other  member  of  the  com- 
munity under  similar  circumstances,  and  every  partial  or  pri- 


vate  law  which  directly  proposes  to  destroy  or  effect  individual 
rights,  or  does  the  same  thing  by  aitordiiig  remedies  leading  to 
similar  consequences,  is  void." 

W'ally's  Heirs  v.  Kennedy,  2  Yerg.,  554  (555). 

Bank  of  the  State  v.  Cooper,  2  Yerg.,  599. 

"Under  the  requirement  of  due  process  of  law,  the  law  must 
provide  some  just  form  or  mode  in  which  the  duty  of  the  citi- 
zen shall  be  determined  before  he  can  be  visited  with  a  pen- 
alty for  non-performance  of  an  alleged  duty"  (which  is  not 
done  if  criteria  of  guilt  are  left  uncertain,  and  consequently  to 
be  supplied  by  the  court). 

Philadelphia  v.  Scott,  81  Penn.  St.,  80  (90). 

Craig  v.  Kline,  65  Penn.  St.,  399. 

"Due  process  of  law  is  a  general  expression  and  is  equiva- 
lent to  the  'law  of  the  land.'  It  permits  the  deprivation  of  life, 
liberty  or  property  according  to  law,  not  otherwise.  It  shields 
such  right  from  arbitrary  power.  Due  process  of  law,  in  a 
[criminal]  case  like  this,  requires  a  law  describing  the  offense. 
The  definition  of  the  offense,  and  the  authority  for  every  step 
of  the  trial  must  be  found  in  the  law  of  the  land.  Nothing 
essential  can  emanate  from  arbitrary  power." 
State  V.  Bates,  14  Utah,  293  (300). 

"These  uncertainties  [arising  from  a  statute]  as  to  whether 
a  man  would  be  subject  to  fine  or  imprisonment,  are  not  the 
qualities  of  law,  but  rather  the  qualities  of  anarchy.  *  *  * 
That  laws  shall  exist  which  are  not  plainly  in  exact  words 
prescribed,  so  that  an  individual  may  know  them,  which  are 
not  passed  by  the  deliberation  of  the  three  legislative  depart- 
ments, each  member  in  each  branch  sworn  to  exercise  his  best 
judgment  for  the  people  upon  his  own  responsibility,  is  directly 
opposed  to  every  principle  of  the  American  or  any  good  gov- 
ernment." 

Thornton  v.  Ter.  of  Wash.,  3  Wash.  Ter.  Rep.,  488- 

494- 

(The  judicially  prescribed  and  ever  varying  "tests  of  ob- 
scenity" never  had  the  endorsement  of  any  branch  of  any 
legislature.) 

"The  clause  'law  of  the  land'  was  defined  in  our  earlier 
cases  to  mean  'a  general  and  public  law,  equally  binding  upon 
every  member  of  the  community ;'  but  by  our  later  cases  it  is 

^,6 


Q 


detined  to  mean  a  law  'which  embraces  all  persons  who  are  or 
may  come  into  like  situation  and  circumstances." 

Stratton  Claim  v.  Morris  Claim,  89  Tenn.  521,  cases. 

Harbison  v.  Knoxville  Iron  Co.,  103  Tenn.,  434. 
If  the  criteria  of  guilt  are  left  for  judicial  creation  the  law 
does  not  uniformly  embrace  all  persons  who  may  come  into 
like  situation. 

"It  is  obvious  there  can  be  no  certain  remedy  in  the  laws    (7\ 
where  the  legislature   [or  courts  in  criminal  cases]   may  j^re-   ^^ 
scribe  one  rule  for  one  suitor  or  a  class  of  suitors  in  the  courts, 
and  another  for  all  others  under  like  circumstances,  or  may 
discriminate  between  parties  to  the  same  suit." 

Durkee  v.  Janesville,  28  Wi.sc.,  464  (471). 
The  city  council  of  Hagerstown.  ]\Id.,  had  been  authorized 
to  pass  ordinances  "to  prevent  nuisances  and  to  regulate  and 
control  offensive  trades"  and  passed  an  ordinance  prohibit- 
ing the  herding  and  keeping  of  domestic  animals  "without 
permit  therefore  first  had  and  obtained  from  the  mayor  and 
council"  but  no  general  rules  were  prescribed  which  would 
control  the  gnmting  of  such  permits.  The  defendant  was 
arrested  for  violating  the  ordinance.  The  ordinance  was  at- 
tacked among  other  reasons  for  this,  that  "it  places  unreason- 
able, arbitrary,  and  oppressive  power  in  the  hand  of  the  mayor 
and  council." 

The  court  said:  "In  re  Christcnsen  (C.  C)  43  Fed.  243,  it 
is  .said :  'The  fact  that  it  permits  arbitrary  discriminations  and 
abuses  in  its  execution,  depending  upon  no  conditions  or  quali- 
fications whatever  other  than  the  unregulated  arbitrary  will  of 
certain  designated  persons,  is  the  touch-stone  by  which  its 
validity  is  to  be  tested.'  In  Cicero  Lumber  Co.  v.  Cicero  176 
111.  9,  51  N.  E.  758,  42  L.  R.  A.  705.  68  Am.  St.  Rep.  155  in  a 
well  considered  ca.se  says:  'The  ordinance  in  so  far  as  it  in- 
vests the  Board  of  Trustees  with  the  discretion  here  indicated 
is  unreasonable.  It  prohibits  that  which  is  in  itself  and  as  a 
general  thing  lawful  and  leaves  the  power  of  permitting  or 
forbidding  the  tise  of  traffic  teams  upon  the  boulevards  to  an 
unregulated  official  discretion,  when  the  whole  matter  should 
be  regulated  by  permanent  local  provisions  operating  generallv 
and  impartially  *  *  *  The  ordinance  in  no  way  regulates 
or  controls  the  discretion  thereby  vested  in  the  Hoard.  It  pre- 
scribes no  conditions  upon  which  the  special  permission  of  the 
Board  is  to  be  granted.     Thus  the  Board  is  clothed  with  the 


.■>/ 


c* 


right  to  grant  the  privilege  to  some  and  to  deny  it  to  others. 
(  »rdinances  which  thus  invest  a  city  council  or  board  of  trustees 
with  a  discretion  which  is  purely  arbitrary  and  ZL'hich  may  be 
exercised  in  the  interest  of  a  favorite  few^  are  unreasonable 
and  invalid.  The  ordinance  should  have  established  a  rule  by 
which  its  impartial  enforcement  could  be  secured.'  "  Citing 
Mayor  v.  Radecke,  49  Md.  230,  33  Am.  Rep.  239. 
Bostock  V.  Sams,  95  ]\Id.  400,  52  Atl.  665,  59  L.  R.  A. 

282,  93  A.  S.  R.  394. 
Cov.  Stockyards  v.  Keith,   139  U.  S.   128,  11   Sup.  Ct. 

461,  35  L.  Ed.  73. 
Crowley  v.  Christensen,  137  U.  S.  89,  11  Sup.  Ct.  13,  34 
L.  Ed.  620. 
"We  hold  the  ordinance  here  in  question  to  be  invalid  and 
contrary  to  law." 

Mayor,  etc.  v.  B.  &  O.  R.  R.  Co.,  68  Atl.  Rep.  490. 
"It  has  been  wisely  and  aptly  said  that  this  is  a  government 
of  lazvs  and  not  of  men;  that  there  is  no  arbitrary  pozver  lo- 
cated in  any  individual  or  body  of  individuals ;  but  that  all  in 
authority  are  guided  and  limited  by  those  provisions  which  the 
people  have,  through  the  organic  law,  declared  shall  be  the 
measure  and  scope  of  all  control  exercised  over  them." 

FEDERAL    COURTS. 

■'A  court  is  not  however  permitted  to  arrive  at  this  [Legis- 
lative] intention  by  mere  conjecture,  but  it  is  to  collect  it  from 
the  object  which  the  Legislature  had  in  view  and  the  expres- 
sions used,  which  should  be  competent  and  proper  to  apprise 
the  community  at  large  of  the  rule  which  it  is  intended  to 
prescribe  for  their  government.  For  although  ignorance  of 
the  existence  of  a  law  be  no  excuse  for  its  violation,  yet  if  this 
ignorance  be  the  consequence  of  an  ambiguous  or  obscure 
phraseology  some  indulgence  is  due  to  it.  //  should  be  a  prin- 
ciple of  ci'cry  criminal  code,  and  certainly  belongs  to  ours,  that 
no  person  be  adjudged  guilty  of  an  offense  unless  it  be  created 
and  promulgated  in  terms  zvhich  leave  no  reasonable  doubt  of 
their  meaning.  *  '^  *  A  court  has  no  option  where  any 
considerable  ambiguity  arises  on  a  penal  statute,  but  is  bound 
to  decide  in  favor  of  the  party  accused.  'Tt  is  more  cons(/nant 
with  the  principles  of  liberty.'  says  an  eminent  English  judge, 
'that  a  court  should  acquit  when  the  Legislature  intended    to 

58 


punish,  than  that  it  should  punish  when  it  was  the  intent  to 
discharge  with  impunity.'  If  no  sense  can  be  discovered  in 
them  [the  words  used  in  tlie  statute]  as  tliey  are  here  intr(j- 
duced,  the  court  had  better  pass  them  by  as  unintelligible  and 
useless,  than  to  put  on  them,  at  great  uncertainty,  a  very  harsh 
signification  and  one  which  the  Legislature  may  never  have 
designed." 

Enterprize,  Fed.  Case  No.  4499,  Vol.  8,  p.  734-5- 
Here  we  may  adapt  to  new  uses  the  words  of  Chief  Justice 
Best,  in  Fletcher  v.  Lord  Sondes,  3  Bing.,  580.  He  says:  "If 
this  rule  is  violated,  the  fate  of  the  accused  person  is  decided 
by  the  arbitrary  discretion  of  judges  and  not  by  the  express 
authority  of  the  laws."  *  =*=  *^  "The  courts  have  no  power 
to  create  offenses  but  if  by  a  latitudinarian  construction  they 
construe  cases  not  provided  for  to  be  within  legislative  enact- 
ment, it  is  manifest  that  the  safety  and  liberty  of  the  citizen 
are  put  in  peril,  and  that  the  legislative  domain  has  been  in- 
vaded. *  *  *  The  doctrine  is  fundamental  in  English  and 
American  lazo  that  there  can  be  no  constructive  offenses;  that 
before  a  man  can  he  punished,  his  case  must  be  plainly  and 
unmistakably  within  the  statute;  that  if  there  be  any  fair  doubt 
whctHer  the  statute  embraces  it.  that  doubt  is  to  be  resolved  in 
favor  of  the  accused.  These  principles  admit  of  no  dispute, 
and  often  have  been  declared  by  the  highest  courts,  and  by  no 
tribunal  more*  clearly  than  the  supreme  court  of  the  L'nited 
States."  i/' 

L\  S.  V.  Clayton,  Fed.  Cas.  No.  14814,  \'ol.  25.  p.  460. 
"Such  an  interpretation  is  not  to  be  adopted  to  give  effect  to 
particular  words,  li'hich  i^'ill  require  on  the  part  of  the  court. 
the  introduction  of  uctv  proi'isions  and  auxiliary  clauses,  which 
the  statute  neither  points  out  nor  even  hints  at,  and  yet  which 
are  indispcnsible  to  make  such  interpretation  servicable  or  prac- 
ticable." 

U.  S.  V.  Bassctt.  v.  24.  Fed.  Cases  p.  IQ34.  No.  14539- 
The  rule  of  this  last  decision  is  violated  by  every  one  of  the 
judicial  "tests  of  obscenity." 

"Penal  statutes  cannot  be  extended  beyond  the  OBVIOUS 

meaning  of  their  terms  on  any  plea  of  failure  of  justice." 

U.  S.  V.  C.arretson.  42  Ved.  R.,  25. 

"Statutes  creating  crimes  will  not  be  extended  by  judicial 

interpretation   to   cases   not    plainly   and    unmistakably   within 

their  terms.     If  this  rule  is  lost  sight  of  the  courts  may  hold  an 

59 


(? 


act  to  be  a  crime  when   the  Legislature   never   so  intended. 
*     *     *     The  sense  of  indignation  against  such  vocation  or 
conduct  sliould  not  permit  a  violation  by  the  courts  of  estab- 
lished rules  of  law,  or  an  unlawful  exercise  of  jurisdiction." 
U.  S.  v.  \Miittier,  Fed.  Case  No.  16688. 

"The  words  'by  law'  in  section  967  [U.  S.  Stat.]  are  em- 
phatic and  refer  in  my  judgment  to  a  fixed  rule  in  respect  to 
time  and  manner,  and  not  to  a  discretionary  pozcer  vested  by 
statute  in  a  state  court." 

Meyers  v.  Tyson,  Fed.  Case  9995-13   Blatch.  242. 

Uncertainty  arising  from  absence  of  specific  standards  of 
judgment  necessarily  involves  the  exercise  of  discretionary 
power  in  determining  what  shall  be  the  essence  of  guilt. 

"A  citizen  desiring  to  obey  the  laws  would  search  the  acts 
of  Congress  in  vain  to  find  that  grazing  sheep  upon  a  forest 
reserve  without  the  permit  of  the  Secretary  of  Agriculture,  is 
a  criminal  ofifense.  It  has  been  suggested  that  the  acts  under 
which  the  indictment  is  drawn  give  notice  that  the  Secretary 
may  make  rules  and  regulations,  and  the  search  would  not  be 
complete  and  the  inquiry  concluded  until  it  be  ascertained 
whether  he  has  made  such  rules  and  regulations,  the  violation 
of  which  it  is  expressly  declared  shall  be  a  criminal  offense. 
But  here  we  are  led  back  to  a  delegation  of  legislative  power. 
The  rules  prescribed  by  the  heads  of  the  departments  are  not 
necessarily  promulgated.  While  they  may  be  procured,  they 
are  not  as  easily  available  as  are  statutes  of  the  United  States ; 
nor  does  our  system  contemplate  an  examination  of  those  rules 
for  the  ascertainment  of  that  which  may  or  may  not  be  a 
crime,  for  the  right  to  prohibit  a  given  thing  under  penalty, 
belongs  to  Congress  alone.  *  *  *-  ft  cannot  authorize  any 
other  branch  of  the  government  [not  even  the  courts]  to  deiine  f^~^ 
that  which  is  purely  legislative,  and  that  is  purely  legislative,^^ 
zi'hich  defines  rights,  permits  things  to  be  done,  or  prohibits 
the  doing  thereof. 

U.  S.  v,  Mathews,  146  Fed.  Rep.  308. 
U.  S.  V.  Eaton,  144  U.  S.,  687. 

"In  order  to  constitute  a  crime,  the  act  must  be  one  zvhich 
the  party  is  able  to  knozc  in  adz'ance  zvhcther  it  is  criminal  or 
not.  The  criminality  of  an  act  cannot  depend  upon  zuhethcr  a 
jury  may  think  it  reasonable  or  unreasonable.  There  must  be 
some  definiteness  and  certainty." 

Tozer  v.  U.  S.,  52  Fed.  Rep.,  919. 

60 


irJow  can  any  man  know  in  advance  from  a  mere  rcadinj^ 
of  the  statute  by  what  "test  of  obscenity"  the  judge  or  jury 
will  determine  the  ^uilt  or  "innocence  of  his  conduct  in  circu- 
lating a  book  or  picture?  ( )f  course  he  can't  know  and  there- 
fore such  laws  cannot  constitute  "Due   i'rocess  of  Law." 

"No  penal  law  can  be  sustained  unless  its  mandates  are 
so  clearly  expressed  that  any  ordinary  person  can  determine  in 
ad'i'ancc  what  he  may  and  what  he  may  not  do  under  it.  [citing 
authorities]  Lieb.  Herm.  156.  In  this  the  author  quotes  th(^ 
Chinese  Penal  Code  which  reads  as  follows:  'Whoever  is  guilty 
of  improper  conduct  and  of  such  as  is  contrary  to  the  spirit  of 
the  laws,  though  not  a  breach  of  any  specific  part  of  it,  shall 
be  punished  at  least  forty  blows,  and  when  the  impropriety  is 
of  a  serious  nature,  with  eighty  blows.'  There  is  very  little 
difference  between  such  statute,  and  one  which  would  make 
it  a  criminal  offense  to  charge  more  than  a  reasonable  rate." 
Chicago  etc.  Railway  Co.  v.  Dey,  35  Fed.  Rep.  866-867. 

"But  to  punish  a  man  for  a  non-performance  of  a  duty, 
it  is  not  sufficient  that  the  law  impliedly  requires  him  to  do 
the  act.  The  statute  must  he  clear  and  explicit  in  its  terms,  in 
defining  that  duty,  in  order  that  he  may  know  what  he  is  called 
upon  to  do,  and  what  it  is  his  duty  to  avoid." 
U.  S.  V.  Dwyer,  56  Fed.  Rep.  468. 

CERTAINTY  REQUIRED  BY  THE  U.   S.   SUPREME  COURT. 

The  Supreme  Court  of  the  United  States  whenever  called 
upon  to  express  an  opinion  upon  the  subject  has  been  uniformly 
insistant  upon  the  requirement  of  certainty  in  the  statutory 
definition  of  crimes. 

"There  can  be  no  constructive  oft'ences." 
U.  S.  v.  Lacher,  134  U.  S.  628. 

"It  is  axiomatic  that  statutes  creating  and  defining  crimes 
cannot  be  extended  by  intendment,  and  that  no  act.  however, 
wrongful,  can  be  punished  under  such  a  statute  unless  clearly 
within  its  terms." 

Todd  V.  U.  S.,  158  U.  S.  282. 

Chief  Justice  Marshall  said  this: 

"The  rule  that  penal  laws  are  to  be  constructed  strictly, 
is  perhaps  not  much  less  old  than  construction  itself.  It  is 
founded  on  the  tenderness  of  the  law  for  the  rights  of  the 
individuals ;  and   on   the   plain   principles   that   the   power   of 

61 


Q 


punishment  is  vested  in  the  legislative,  not  in  the  judicial  de- 
partment. It  is  the  legislature,  not  the  court  which  is  to  define 
a  crime,  and  ordain  its  punishment.  ...  To  determine 
that  a  case  is  within  the  intention  of  a  statute  its  language 
must  authorize  us  to  say  so.  It  would  be  dangerous,  indeed, 
to  carry  the  principle  that  a  case  which  is  within  the  mischief 
of  a  statute,  is  within  its  provisions  so  far  as  to  punish  a 
crime  not  enumerated  in  the  statute,  because  it  is  of  equal 
atrocity,  or  of  kindred  character,  with  those  which  are  enu- 
merated. If  this  principle  has  ever  been  recognized  in  ex- 
pounding criminal  law,  it  has  been  in  cases  of  considerable 
irritation  which  it  would  be  unsafe  to  consider  as  precedents 
forming  a  general  rule  for  other  cases, 

U.  S.  V.  Wiltberger,  5  Wheat.  95. 

See  also  Ferrett  v.  Atwill,  i  Blatchford  157. 
Before  this  the  Supreme  Court  had  said :  "The  effect  of 
the  provision  [requiring  Due  Process  of  Law]  is  to  secure  the 
individual  from  the  arbitrary  exercise  of  the  powers  of  govern- 
ment." 

Bank  of  Columbia  v.  Oakley,  4  Wheat.  235  (244), 
Meyer's  Vested  Rights  196. 
"If  the  language  is  clear  it  is  conclusive.  There  can  be  no 
construction  where  there  is  nothing  to  construe.  The  words 
must  not  be  narrowed  to  the  exclusion  of  what  the  legislature 
intended  to  embrace,  and  they  must  be  such  as  to  leave  no 
reasonable  doubt  upon  the  subject." 

U.  S.  v.  Hartwell,  y^  U.  S.  (6  Wall)  396. 
"Lazvs  which  prohibit  the  doing  of  things,  and  provide  a 
punishment  for  their  violation  should  have  no  double  meaning. 
A  citizen  should  not  unnecessarily  be  placed  zvhcre,  by  an  honest 
error  in  the  construction  of  a  penal  statute,  he  may  be  sub- 
jected to  a  prosecution  for  a  false  oath,  and  an  inspector  of 
elections  should  not  be  put  in  jeopardy  because  he,  with  equal 
honesty,  entertains  an  opposite  opinion.  .  .  .  If  the  legis- 
lature undertakes  to  define  by  statute  a  nezv  offense  and  pro- 
vide for  its  punishment,  it  should  express  its  will  in  language 
that  need  not  deceive  the  common  mind.  Every  man  should  be 
able  to  know  with  certainty  when  he  is  committing  a  crime. 
.  .  .  It  "(vould  certainly  be  dangerous  if  the  legislature  could 
set  a  net  large  enough  to  catch  all  possible  offenders  and  leave 
it  to  the  court  to  step  inside  and  say  who  could  be  rightfully 
detained,  and  who  should  be  set  at  large.     This  would  to  some 

62 


extent  substitute  the  Judicial  for  the  lei^islative  department  of 
the  government." 

U.  S.  V.  Reese  92  U.  S.  2i9^22i''Lo  "sC.  S(oZ,  X(dS,  \^ 
"When  we  consider  the  nature  and  theory  of  our  govern- 
ment, the  principles  upon  which  they  are  supposed  to  rest, 
and  review  the  history  of  their  development,  we  are  con- 
strained to  conclude  that  they  do  not  mean  to  leave  room  for 
the  play  and  action  of  purely  arbitrary  poiver,"  (such  as  must 
result  if  the  statute  leaves  the  test  of  criminality  uncertain). 

Yick  Wo,  v.  Hopkins,  118  U.  S.  356-359. 
"No  language  is  more  worthy  of  frequent  and  thoughtful 
consideration   than    these    [foregoing]    words   of    Mr.    Justice 
Mathews." 

Gulf  C.  &  S.  Fe.  Ry.  v.  Ellis,  165  U.  S.  159. 
"The  words  'due  process  of  law'  come  to  us  from  England, 
and  their  requirements  were  there  designed  to  secure  the  suh- 
ject  against  the  arbitrary  action  of  the  crown  and  place  him 
under  the  protection  of  the  law.  ...  In  this  country  the 
requirements  are  intended  to  have  a  similar  effect  against  legis- 
lative power,  that  is,  to  secure  the  citizen  agai>ist  any.  arbitrary 
deprivation  of  his  rights  ivhether  relating  to  his  life,  his 
liberty  or  his  property.  .  .  .  The  great  purpose  of  the 
requirements  is  to  exclude  everything  that  is  arbitrary  and 
capricious  in  legislation  affecting  the  rights  of  the  citizens. 

Dent  V.  West  Virginia,  129  U.  S.  114. 
S.  C.  Meyer's  Vested  Rights   195. 

Millett  V.  People,  117  111.  294.  (1886). 
"Laws  which  create  crime  ought  to  be  so  explicit  that  all 
men  subject  to  their  penalties  may  know  zvhat  acts  it  is  their 
duty  to  avoid.     U.  S.  v.   Sharp,  Pet.  C.  C.    118,  Fed.  Case 
No.    16264." 

U.  S.  V.  Brewer,  139  U.  S.  288,  11  Sup.  Ct.  Rep.  538. 

U.  S.  V.  New  Bedford  Bridge  Co.,  Fed.  Case  No.  15867. 

"In  the  administration  of  the  criminal  justice  no  rule  can 

be  applied  to  one  class  which  is  not  applicable  to  all  other 

classes,"   (which  is  not  insured  if  the  tests  of  criminality  are 

of  judicial  creation). 

Gibson  v.  Mississippi,  162  V.  S.  591. 
"It  is  all  important  that  a  criminal  statute  should  define 
clearly  the  offence  which  it  purports  to  punish,  and  that  when 
so  defined  it  should  be  within  the  limits  of  the  power  of  the 
legislative  body  enacting  it." 

James  v.  Bowman,  190  U.  S.  127. 
63 


LOUISVILLE  &  X.  RV.  CO.  V.  COMAIONWEALTH. 

Perhaps  the   lengthiest  statement  concerning  the   require- 
ment of  certainty  in  a  criminal  statute  is  made  by  the  Court  of 
Appeals  of  Kentucky,  in  declaring  unconstitutional  a  statute 
penalizing  transportation  companies   for  charging  more  than 
a  just  and  reasonable  rate  of  toll  for  the  transportation  of 
passengers   and   of   freight.      In   that   case   the   court   among 
other  things  said  this : 
%/    "That  this  statute  leaves  uncertain  what  shall  be  deemed  a 
'just  and  reasonable  rate  of  toll  or  compensation'  cannot  be 
denied;  and  that  different  juries  might  reach  different  conclu- 
sions, on  the  same  testimony  as  to  whether  or  not  an  offense 
has  been  committed,  must  also  be  conceded.     That  criminality 
of  the  carrier's  act,  therefore,  depends  on  the  jury's  view  of  the 
reasonableness  of  the  rate  charged,  and  this  latter  depends  on 
many  uncertain  and  complicated  elements.     That  the  corpora- 
tion has  fixed  a  rate  which  it  considers  will  bring  it  only  a  fair 
return  for  its  investment  does  not  alter  the  nature  of  the  act. 
Under  this  statute  it  is  still  a  crime,  though  it  cannot  be  known 
to  be  such  until  after  an  investigation  by  a  jury,  and  then  only 
in  that  particular  case,  as  another  jury  may  take  a  dift'erent 
view,  and,  holding  the  rate  reasonable,  find  the  same  act  not 
to  constitute  an  oft'ense.     There  is  no  standard  whatever  fixed 
by  the  statute,  or  attempted  to  be  fixed  by  which  the  carrier 
may  regulate  its  conduct.    And  it  seems  clear  to  us  to  be  utterly 
repugnant  to  our  system  of  laws  to  punish  a  person  for  an  act, 
the  criminality  of  which  depends,  not  on  any  standard  'erected 
by  the  law,  which  may  be  known  in  advance,  but  on  one  erected 
by  a  jury;  and   especially   so,   as   that   standard  must   be   as 
variable  and  uncertain  as  the  views  of  different  juries  may 
suggest,  and  as  to  which  nothing  can  be  known  until  after 
the  commission  of  the  crime. 

"If  the  infliction  of  the  penalties  prescribed  by  the  statute 
would  not  be  the  taking  of  property  without  due  process  of 
law,  and  in  violation  of  both  state  and  federal  constitutions, 
we  are  not  able  to  comprehend  the  force  of  our  organic  laws. 
In  Louisville  &  N.  R.  Co.  v.  Railroad  Comaaissi^a  of  Ten- 
naacaa,  i6  Am.  &  Eng.  R.  Cas.  15,  a  statute  very  similar  to 
the  one  under  consideration  was  thus  disposed  of  by  the 
learned  judge  (Baxter)  :  'Penalties  cannot  be  thus  inflicted  at 
the  discretion  of  a  jury.     Before  the  property  of   a  citizen, 

64 


natural  or  corporate,  can  be  thus  confiscated,  the  crime  for 
which  the  penalty  ,^  inflicted  must  be  defined  by  the  law- 
making power.  The  legislature  cannot  delegate  this  power  to 
a  jury.  If  it  can  declare  it  a  criminal  act  for  a  railroad  cor- 
poration to  take  more  than  a  'fair  and  just  return'  on  its 
investments  it  must,  in  order  to  the  validity  of  the  law,  define 
with  reasonable  certainty  what  would  constitute  such  'fair  and 
just  return.'  The  act  under  review  does  not  do  this,  but 
leaves  it  to  the  jury  to  supply  the  omission.  No  railroad 
company  can  possibly  anticipate  what  view  a  jury  may  take  of 
the  matter,  and  hence  cannot  know,  in  advance  of  a  verdict, 
whether  its  charges  are  lawful  or  unlawful.  One  jury  may 
convict  for  a  charge  made  on  a  basis  of  4  per  cent.,  while 
another  might  acquit  an  accused  who  had  demanded  and  re- 
ceived at  the  rate  of  6  per  cent.,  rendering  the  statute,  in  its 
practical  working,  as  unequal  and  unjust  in  its  operation  as  it 
is  indefinite  in  its  terms. \/^"he  supreme  court  of  the  United 
States,  in  Railroad  Commission  Cases.  116  U.  S.  336,  6  Sup. 
Ct.  334,  348  388,  391,  1 191,  refers  to  this  Tennessee  case,  and 
substantially  approves  it  by  distinguishing  the  case  then  before 
the  court  from  the  Tennessee  case.  This  case  is  also  used 
to  support  the  text  in  8  Am.  &  Eng.  Enc.  Law,  p.  935,  where 
it  is  said:  'Although  a  statute  has  been  held  to  be  unconsti- 
tutional which  left  it  to  the  jury  to  determine  whether  or  not  a 
charge  was  excessive  and  unreasonable,  in  order  to  ascertain 
whether  a  penalty  is  recoverable,  yet  where  the  action  is  merely 
for  recovery  of  the  illegal  excess  over  reasonable  rates,  this 
is  a  question  which  is  a  proper  one  for  a  jury.'  Mr.  Justice 
Brewer,  in  the  case  of  Railway  Co.  v.  Dey,  35  Fed.  866.  had 
under  consideration  the  provision  of  a  statute  similar  to  the 
one  we  have  before  us,  and,  while  the  statute  was  upiield,  it 
was  only  because  there  was  a  schedule  of  rates  provided  in 
the  act  which  rendered  the  test  of  reasonableness  definite  and 
certain.  The  learned  judge  there  said:  "Now  the  contention  of 
complainants  is  that  the  substance  of  these  provisions  is  that, 
if  a  railroad  company  charges  an  unreasonable  rate,  it  shall 
be  deemed  a  criminal,  and  punished  by  fine,  and  that  such  a 
statute  is  too  indefinite  and  uncertain,  no  man  being  able  to  tell 
in  advance  what  in  fact  is,  or  what  any  jury  will  find  to  be, 
a  reasonable  charge.  If  this  were  the  construction  to  be  placed 
upon  this  act  as  a  whole,  it  would  certainly  be  obnoxious  to 
complainant's  criticisms,   for  no  penal  law  can  be  sustained 

65 


unless  its  mandates  are  so  clearly  expressed  that  any  ordinary 
person  can  determine  in  advance  what  he  may  and  what  he 
may  not  do  under  it.  In  Dwar.  St.  652.  it  is  laid  down  that  it 
is  impossible  to  dissent  from  the  doctrine  of  Lord  Coke  that 
'acts  of  i)arliament  ought  to  be  ])lainly  and  clearly,  and  not 
cunningly  and  darkly,  penned,  especially  in  legal  matters.' 
'See  also  U.  S.  v.  Sharp,  pet,  C.  C.  122,  Fed.  Cas.  16.  264: 
The  Enterprise,  i  Paine,  34,  Fed.  Cas.  No.  4.  499 ;  Bish.  St. 
Crimes  41 ;  Lieb.  Herm  156.  And  the  learned  judge  concludes 
there  is  very  little  difference  between  a  provision  of  the  Chinese 
Code,  which  prescribed  a  penalty  against  any  one  who  should 
be  guilty  of  'improper  conduct'  and  a  statute  which  makes  it 
a  criminal  offense  to  charge  more  than  a  reasonable  rate. 
The  same  learned  judge  discussing  the  kindred  subject  of  un- 
reasonable diff'erence  in  rates  in  Tozar  v.  U.  S.  52  Fed.  917. 
said :  'But,  in  order  to  constitute  a  crime,  the  act  must  be  one 
which  the  party  is  able  to  know  in  advance  whether  it  is  crimi- 
nal or  not.  The  criminality  of  an  act  cannot  depend  upon 
whether  a  jury  may  think  it  reasonable  or  unreasonable.  There 
must  be  some  definiteness  and  certainty.  ^  When  we  look  on 
the  other  side  of  the  question,  we  find  the  contention  of  the 
state  supported  by  neither  reason  or  authority.  No  case  can 
be  found,  we  believe,  where  such  indefinite  legislation  has  been 
upheld  by  any  court  when  a  crime  is  sought  to  be  imputed  to 
the  accused.V  In  the  case  from  'j'j  111.  the  court  said:  that 
section,  by  itself,  makes  the  offense  to  consist  in  taking  more 
than  a  fair  and  reasonable  rate  of  toll  and  compensation,  with- 
out reference  to  any  standard  of  what  is  fair  and  reasonable. 
^  In  such  case  it  may  be  seen  different  persons  have  different 
opinions  as  to  what  is  a  fair  and  reasonable  rate.  Courts  and 
juries  too  w^ould  differ,  and  at  one  time  or  place  a  defendant 
might  be  convicted  and  fined  in  a  large  amount  for  the  same 
act,  which  in  another  place  or  at  another  time,  would  be  held 
to  be  no  breach  of  the  law,  and  what  might  be  thought  a  fair 
and  reasonable  rate  on  one  road  might  be  thought  otherwise 
upon  another  road.  There  would  be  no  certainty  of  being 
able  to  comply  with  the  law.  A  railroad  corporation,  with  the 
purpose  of  conforming  to  the  law,  might  fix  its  rates  at  what  it 
believed  to  be  reasonable,  and  yet  be  subjected  to  the  heavy 
penalties  here  prescribed.^^he  statute  furnishes  evidence  that 
it  did  not  intend  to  leave  the  railroad  in  this  state  of  uncertainty 
and    danger,    and    exposed    to    such    seeming    injustice.      The 

66 


eighth  section  provides  how  reasonable  rates  shall  be  ascer- 
tained, wiiat  iIkv  >hall  be.  and  that  tlic  raih-oad  and  warehouse 
commissioners  for  each  of  the  raih'oad  corporations  in  the  state 
a  schedule  of  reasonable  maximum  rates  thus  furnishing  a  uni- 
form rule  for  tlie  _<;uidance  of  the  railroad  companies.  These 
authorities  and  the  argument  abundantly  supporting  them  arc 
sufficient." 

"Other  objections  to  the  iudi^nient  below  need  not  be  dis- 
cussed, as  the  one  noted  is  fatal,  and  the  statute  cannot  be 
enforced  as  a  penal  statute." 

Louisville   &   X.   R.   Co.   v.    Commonwealth    35    S.    W. 
Rep.  1 29- 13 1. 

In  the  aggregate  the  foregoing  authorities  prove  and 
demonstrate  that  though  often  neglected,  the  ancient  maxim 
"Ubi  jus  incertum  ibi  jus  nullum,"  (Where  the  law  is  uncertain 
there  is  no  law)  is  still  a  fundamental  part  of  our  juris- 
prudence, and  that  in  consequence  all  uncertain  penal  statutes, 
are  unconstitutional  because  not  constituting  "Due  process  of 
Law."  In  the  following  chapter  the  whole  of  this  discussion 
will  be  summarized,  and  some  hitherto  overlooked-for  applica- 
tions of  the  doctrine  will  be  suggested. 


^v- 


THE  APPLICATION. 

When  it  was  first  determined  by  the  Free  Speech  League 
to  pubhsh  these  collected  essays  I  thought  to  prepare  for  this 
last  chapter  a  summary  of  all  the  generalizations  which  I  have 
hereinbefore  defended,  and  to  make  an  application  of  these 
principals  to  various  statutes  which  might  be  annulled  by  vir- 
tue of  them.  However,  I  now  deem  that  to  require  so  much 
space  and  time  as  to  preclude  the  execution  of  my  original 
intention.  I  therefore  will  content  myself  by  briefly  suggesting 
a  comparatively  few  penal  statutes  which  it  seems  to  me  are 
not  "the  law,"  and  conviction  under  which  is  not  "due  process 
of  law,"  because  the  statutes  are  devoid  of  any  definite  cri- 
teria of  guilt. 

The  first  of  these  that  I  shall  name  are  the  Sunday  laws 
of  the  several  states  which  except  "necessary"  labor,  without 
telling  us  by  what  standard  to  determine  that  degree  of  urgency 
which  will  exempt  a  laborious  act  from  criminality.  The  next 
class  is  "blasphemy"  laws,  such  as  exist  in  Pennsylvania, 
wherein  blasphemy  is  not  defined.  Equally  uncertain  and 
unconstitutional  are  the  laws  against  "profane  swearing,"  etc., 
without  defining  the  statutory  words,  leaving  the  judge  to 
enact  any  definition  of  the  crime  that  he  may  choose  in  the 
exercise  of  a  legislative  discretion. 

The  criminal  nuisance  statute  of  New  York  makes  most 
of  its  criteria  of  guilt  to  depend  upon  whether  or  not  an 
alleged  nuisance  afifects  a  "considerable  number  of  persons," 
leaving  it  for  a  court  of  jury  to  say  how  many  constitute  a 
"considerable  number."  Under  this  statute  it  is  also  a  crime  to 
"annoy"  them  without  defining  what  kind  of  annoyance  shall 
constitute  the  offence,  nor  informing  us  of  any  standard  of 
judgment  by  which  to  determine  its  presence. 

The  medical  laws  of  many  states  penalize  he  act  of  "prac- 
ticing medicine"  by  unlicensed  physicians,  without  telling 
what  shall  constitute  the  prohibited  act  of  "practicing  medi- 
cine" and  some  of  these  statutes  exempt  those  who  only  pre- 

68 


scribe  "family  remedies,"  without  informino^  us  by  what  test 
to  separate  "family  remedies"  from  non-family  remedies. 
All  such  laws  as  these  above  referred  to,  it  seems  to  me.  are 
void  for  uncertainty  in  tlie  dcfniition  of  the  crimr. 

We  have  a  Federal  statute  as^ainst  railroads,  which  statute 
declares  it  a  crime  to  conspire  "lo  make  or  ^ive  any  undue  or 
unreasonable  preference  or  advantage,"  etc..  without  telling  us 
by  what  standard  the  "reasonableness"  of  a  preference  or  ad- 
vantage is  to  be  judq'ed.  Such  a  law  surely  cannot  constitute 
"due  process  of  law"  under  tlic  foregoing  authorities,  nor 
under  a  scientific  conception  of  "law."  Equally  unconstitutional 
is  the  President's  proposition  to  exempt  "good"  trusts  from 
the  operation  of  the  Sherman  rmti-trust  law  unless  the  statute 
shall  furnish  the  standard,  general  equal  and  certain  by  which 
the  judgment  is  unavoidably  and  uniformly  determined.  Such 
an  exemption  cannot  be  left  to  the  arbitrary  and  lawless  will 
of  a  commission  or  a  cabinet  officer.  Without  this  certainty 
the  proposed  amendment  might  even  have  the  eflfect  of  an- 
nvdling  the  original  act. 

It  is  declared  a  crime  to  send  through  the  mails  "any 
article  or  thing  intended  or  adapted  for  an  indecent  or  im- 
moral use,"  with  not  the  slightest  intimation  of  the  standard 
by  which  we  are  to  arrive  at  a  judgment  about  the  "im- 
morality" to  which  the  "article  or  thing"  may  be  adapted. 
It  is  also  a  crime  to  give  information  by  mail  as  to  where 
such  "article  or  thing"  may  be  had.  Furthermore  it  is  a 
crime  to  send  through  the  mail  anything  upon  the  outside  of 
which  are  any  'indecent  or  scurrilous  epithets."  This  seems 
about  the  acme  of  uncertainty  and  recently  resulted  in  the 
arrest  of  a  poor  wit  who  addressed  a  letter  to  "Teddy.  Bom- 
bastus  Furioso,  White  House,  Washington.  D.  C."  Haven't 
we  already  descended  beneath  the  tyrannous  uncertainty  of  a 
barbarous  Chinese  Code  which  punishes  all  "improper"  con- 
duct ? 

Under  the  abridgement  of  freedom  of  speech  and  of  the 
press  created  by  the  "Criminal  Anarchy"  statutes  of  New 
York  State,  among  other  things  it  becomes  a  crime  to  advo- 
cate violence  against  officers  of  "any  civilized  nation-"  without 
any  test  by  which  to  determine  what  constitutes  civilization. 
If  a  court  or  jury  was  called  upon  to  decide  whether  or  not 
Russia  or  China  were  "civilized  nations"  there  might  be  much 
diflFerence  of  opinion  and  the  conclusion  would  always  be  de- 

^■9 


termined  by  ex  f^ost  facto  standards,  personal  to  the  court  or 
jury  and  not  created  by  the  law-enacting  power.  Here  as  in  all 
such  cases,  the  law  is  a  nullity  because  "where  the  law  is  un- 
certain there  is  no  law." 

However,  the  foregoing  illustrations  are  laws  which  are 
comparatively  seldom  enforced,  and  this  may  in  part  explain 
the  fact  that  their  constitutionality  has  never  been  questioned. 
But  this  explanation  cannot  explain  the  other  fact  that,  not- 
withstanding over  5000  prosecutions,  no  one  has  ever  presented 
for  adjudication,  as  to  their  constitutionality,  those  elusively 
vague  laws  existing  in  all  the  states  and  in  our  national  code, 
and  which  penalize  in  various  ways  "obscene,  indecent,  filthy 
or  disgusting"  literature  and  art,  and  none  of  which  statutes 
furnish  any  criteria  by  which  to  draw  the  line  between  the 
degrees  of  indecency  which  are  criminal  and  those  which  are 
only  a  matter  of  bad  taste.  In  many  published  articles  I  have 
pointed  out  the  great  variety  of  official  and  unofficial  modesty. 
Reprints  of  most  of  these  articles  will  be  sent  to  any  judge 
upon  request  made  to  The  Free  Speech  League,  120  Lexing- 
ton Ave.,  New  York  City.  An  equally  numerous  variety  in  our 
conception  of  the  "obscene"  will  be  discovered  by  any  person 
making  a  comparative  critical  study  of  the  "tests  of  obscenity" 
always  created  by  judicial  legislation.  I  am  hoping  soon  to 
prepare  an  exhibition  of  these  mutually  destructive  and  con- 
tradictory "tests"  of  guilt. 

Although  such  legislation  as  we  are  now  considering  is 
utterly  devoid  of  even  the  semblance  of  criteria  of  guilt,  yet 
no  court  has  ever  been  asked  to  annul  the  statutes  on  that 
account.  Notwithstanding  this,  a  few  courts  have  all  but 
declared  such  laws  unconstitutional  when  only  asked  to  give 
a  defendant  the  benefit  of  the  doubt  as  to  whether  his  act 
came  within  the  uncertain  statute. 

The  highest  court  of  the  State  of  Indiana  has  left  us  an 
instructive  opinion.  The  court  is  construeing  a  statute  against 
"notorious  lewdness  or  public  indecency."  No  question  of  the 
constitutionality  of  the  statute  was  before  the  court,  yet  after 
reviewing  English  authorities,  the  court  continues  its  reflections 
thus:  "It  would  therefore  appear  that  the  term  'public  in- 
decency' has  no  fixed  lei^al  meaning — is  vague  and  indefinxte, 
and  cannot  in  itself  imply  a  definite  offence.  And  hence,  the 
courts,  by  a  kind  of  judicial  legislation,  in  England  and  the 
United  States,  have  usually  limited  the  operation  of  the  term  to 

70 


public  displays  of  the  naked  person,  the  publication,  sale  or 
exhibition  of  obscene  books  and  prints,  or  the  exhibition  of  a 
monster — acts  which  have  a  direct  bcarinj^  on  public  morals, 
and  efifect  the  body  of  society.  Thus  it  will  be  perceived  that 
so  far  as  there  is  a  Icj^al  meaninj^  attached  to  the  term,  it 
is  different  from  and  more  limited  than  the  commonly  accepted 
meaning  given  by  Webster  to  the  word  indecency.  A  statute 
relative  to  a  misdemeanor  of  the  grade  and  character  of  this, 
and  prescribing  so  severe  a  penalty  as  the  deprivation  of 
liberty  by  imprisonment,  ought  to  be  clearly  zvorded,  so  as  to 
leave  no  doubt  or  aniJnguity  about  its  meaning,  before  it  should 
be  construed  to  include  a  large  and  undefined  class  of  offences 
against  morality.  *  *  *  This  statute,  under  such  circum- 
stances, should  be  in  itself  explicit,  and  should  not  depend  for 
vitality  upon  another  act  defining  the  meaning  of  words.  *  * 
If  the  statute  is  given  the  broad  construction  contended  for 
by  the  prosecution,  who  is  to  determine  what  phrases  amount 
to  an  offence  under  it?  Is  the  public  sentiment  of  each  locality 
to  be  reflected  through  the  jury?"  "^Conviction  reversed  be- 
cause act  not  within  the  statute,  that  being  all  that  was  before 
the  court). 

Mc  Junkins  vs.  State,  lo  Ind.  145  4  A.  D.  iSf^g^T" 
In  another  place  I  find  a  quotation  to  the  point,  but  the 
original  source  of  which  I  do  not  know  with  certainty.  From 
the  connection  in  which  it  is  published  I  infer  that  it  is  quoted 
from  an  unofficial  report  of  the  remarks  of  the  late  Judge 
Lowell,  of  Boston,  while  imposing  a  nominal  fine  upon  one 
Jones,  who  had  pleaded  guilty  to  distributing.  "Clark's  Mar- 
riage Guide"  through  the  mails. 

•■  "Crime  should  be  so  clearly  defined  that  there  can  be  no 
mistaking  it,M"i'<^er,  homicide,  arson,  larceny,  burglary,  forg- 
gery,  are  so  defined  that  they  cannot  be  misunderstood.  If 
obscenity  is  a  crime  punishable  by  fine  and  imprisonment  it 
ought  to  be  so  clearly  described  that  we  may  know  in  what  it 
consists,  and  that  accused  persons  may  not  be  at  the  mercy 
of  a  man,  or  a  number  of  men  who  construe  what  is  obscene, 
indecent  or  immoral  by  their  own  special  opinion  or  notion  of 
morality  or  immorality.  What  is  obscene  to  one  man  may  be 
pure  as  mountain  snow  to  another.  One  man  should  not  and 
cannot  decide  for  other  men."  ^ 

Requoted  from  Heywood's  Defence,  p.  29. 
In  another  case  a  similiarly  vague  statute  made  it  a  mis- 

71 


demeanor  to  "commit  any  act  injurious  to  the  public  health,  or 
public  morals,  or  the  preversion  or  obstruction  of  public  justice 
or  the  due  administration  of  the  law."  The  court  said:  ."We 
cannot  conceive  how  a  crime  can,  on  any  sound  principle,  be 
defined  in  so  vague  a  fashion.  Criminality  depends,  under  it, 
upon  the  moral  idiosyncrasies  of  the  individuals  who  compose 
the  court  or  jury.  The  standard  of  crime  woidd  be  ever  vary- 
ing, and  the  courts  would  constantly  be  ai^pealed  to  as  the 
instruments  of  moral  reform,  changing  with  all  fluctuations  of 
moral  sentiment.  The  law  is  simply  null.  The  constitution 
which  forbids  ex  post  facto  laws,  could  not  tolerate  a  law  which 
would  make  an  act  a  crime,  or  not,  according  to  the  moral 
sentiment  which  might  happen  to  prevail  with  the  judge  or 
jury'  after  the  act  had  been  committed." 

Ex  parte  Andrew  Jackson,  45  Ark.   164.  \y 

One  United  States  Court,  although  not  asked  to  do  so,  has 
all  but  declared  the  postal  laws  against  "obscene"  literature  to 
be  unconstitutional — as  the  necessary  result  of  tlieir  uncertainty. 
V/'"We  have  been  taught  to  believe  that  it  was  the  greatest 
injustice  toward  the  common  people  of  old  Rome  when  the 
laws  they  were  commanded,  to  obey,  under  Caligula,  were 
written  in  small  characters,  and  hung  upon  high  pillars,  thus 
more  effectually  to  insnare  the  people.  How  much  advantage 
may  we  justly  claim  over  the  old  Romans,  if  our  criminal 
laws  are  so  obscurely  written  that  one  cannot  tell  when  he 
is  violating  them  ?  If  the  rule  contended  for  here  is  to  be 
applied  to  the  defendant,  he  will  be  put  upon  trial  for  an  act 
which  he  could  not  by  perusing  the  law  have  ascertained  was 
an  offence.  My  own  sense  of  justice  revolts  at  the  idea.  I 
cannot  give  it  my  sanction.  *  *  *  The  indictment  is  quashed, 
and  the  defendant  is  discharged." 

U.   S.  V.  Commerford,  25   Fed.  Rep.,  .904.  W^st-Dist. 
©f-Texr 

I  have  made  no  search  for  statutes  of  the  kind  to  which 
the  principles  contended  for  in  the  foregoing  essays  should  be 
applied.  Those  which  I  have  mentioned  as  illustrative  ex- 
amples are  such  as  have  been  called  to  my  attention  in  the 
ordinary  pursuits  of  my  vocation  as  a  lawyer,  and  literateur. 
These  selected  suggestions  perhaps  are  not  the  most  fortunate 
illustrations  for  the  application  of  this  doctrine  and  certainly 
cannot  be  tbe  only  statutes  exhibiting  such  deplorable  absence 
of  criteria  of  guilt.     The  essential  purpose  of  my  discussion 

72 


has  not  been  so  much  to  destroy  any  particular  statute  as  to 
resurrect  and  revivify  for  constant  use  the  old  and  self-evident 
truth  expressed  by  the  maxim  "Ubi  jus  incertum  ibi  jus 
nullum,"  (where  the  law  is  uncertain  there  is  n<j  law).  If  I 
shall  have  contributed  only  a  little  to  that  end  then  I  am 
amply  repaid  for  my  otherwise  unrenumcrated  work  in  this 
behalf. 

It  is  a  conceded  rule  that  precision  in  the  description  of  an 
offence  as  alleged  in  an  indictment  is  of  the  greatest  im- 
portance. The  same  reasons  apply  with  even  g-reater  force 
toward  requiring  even  greater  certainty  in  a  statute  declaring 
conduct  to  be  punishable  as  such.  The  facts  which  are  to  be 
penalized  must  be  specifically  and  accurately  defined  in  a 
statute  which  makes  them  punishable.  If  this  is  not  done  we 
must  declare  such  laws  to  be  unconstitutional  as  not  consti- 
tuting "law,"  not  "due  process  of  law."  The  failure  to  do  this 
means  only  that  we  are  prepared  to  abandon  a  government 
according  to  law,  and  revert  to  the  arbitrary  despotism  of  the 
courts,  who  under  uncertain  statutes  will  punish  men  for 
crimes  which  they  could  not  know  to  be  such  when  the  act 
was  committed,  guilt  of  which  is  determined  according  to  ex 
post  facto  tests  of  criminality  which  are  of  judicial  creation, 
not  having  the  specific  endorsement  of  any  of  the  three 
branches  of  the  legislative  department  of  the  jgovernment,  and 
as  to  the  nature  of  which  criteria  of  guilt  no  lawyer  could  ad- 
vise a  client  in  advance  of  the  trial.  Courts  seem  to  have  up- 
held and  enforced  some  of  these  outrageous  uncertain  statutes, 
but  it  is  only  a  seeming  endorsement,  because  the  uncertainties 
and  the  consequences  of  them,  as  herein  contended  for,  prac- 
tically have  never  been  presented  for  adjudication.  I  cannot 
believe  that  when  this  is  properly  done,  that  any  court  of  last 
resort  will  ever  give  its  sanction  for  the  step  backward  which 
would  destroy  all  that  has  been  thus  far  gained  in  the  battle 
for  "liberty"  under  "law"  as  against  the  lawless  despotism  of 
men  in  official  station.  It  will  take  more  than  one  decision  of 
the  Supreme  Court  of  the  United  States  to  convince  me  that 
this  is  a  permanent  possibility  in  our  country. 


While  I  was  reading  the  proof  sheets  of  the  foregoing 
essays  my  attention  was  directed  to  two  other  classes  of  con- 
structive ofifenses  to  which  I  believe  I  should  call  attention. 

Under  the  scientific  conception  of  the  law  which  is  herein- 


before  defended  it  would  be  impossible  that  any  one  could  be 
punished  for  a  contempt  of  court,  except  for  acts  committed  in 
the  very  presence  of  the  court,  or  its  officers  in  the  actual  per- 
formance of  their  official  duty  and  of  such  a  character  as  to 
actually  interfere  with  the  orderly  conduct  of  the  judicial  busi- 
ness. Under  a  scientific  conception  of  laiv,  courts  would  be 
precluded  from  construeing  an  injury  to  their  humanly  weak 
vanity  as  a  public  injury  to  be  avenged  in  the  name  of  the  law. 
This  would  make  impossible  such  a  decision  as  that  very  re- 
cently rendered  in  Minnesota  (see  State  Board  v.  Hart,  ii6  N. 
\V.  Rep.  212,  also  "The  Progressing  Despotism  of  the  Judi- 
ciary," in  The  Arena,  July,  1908). 

Another  circumstance  just  coming  under  my  notice  suggests 
to  me  that  perhaps  the  United  States  army  officers  exercise 
more  lawless  power  over  the  enlisted  men  than  any  other 
branch  of  our  government,  and  probably  exceeding  even  the 
outrages  of  the  Post  Office  Department. 

Of  course  the  army  owes  its  very  existence  to  the  Consti- 
tution and  the  powers  by  it  vested  in  Congress.  It  follows 
that  every  man  in  the  army,  equally  with  those  out  of  it,  have 
the  same  identical  protection  against  arbitrary  power.  Per- 
haps it  may  be  safely  assumed  that  decipline  to  the  extent 
only  of  dismissal  may  be  inflicted  under  army  regulation, 
yet  it  is  quite  certain  that  army  officers  cannot  enact  a  criminal 
code.  (See  U.  S.  v.  Mathews,  146  Fed.  Rep.  308,— U.  S.  v. 
Eaton,  144  U.  S.  687.) 

But  let  us  assume  that  army  officials  have  been  by  the 
Constitution  endowed  with  legislative  power  adequate  to  the 
passing  of  penal  statutes,  what  must  we  say  about  an  army 
regulation  which  penalizes  without  further  description  "of- 
fences against  the  flag  and  the  army."  Under  this  out- 
rageously vague  regulation  one  Buwalda,  a  private  soldier 
with  an  unexceptional  record  of  15  years  of  army  service  was 
given  five  years'  imprisonment  because  off  the  military  reser- 
vation and  while  not  on  duty,  he  shook  hands  with  an  un- 
popular woman  (Miss  Emma  Goldman),  who  has  never  com- 
mitted any  offence  against  the  United  States  and  who  says  that 
it  is  impossible  for  her  to  live  down  the  falsehoods  which  news- 
papers have  told  about  her,  as  much  as  it  is  impossible  for  her 
to  live  up  to  her  reputation.  If  such  conduct  under  such  regu- 
lation can  constitute  "due  process  of  law,"  then  we  had  better 
abolish  our  Constitution  and  go  to  Russia  to  secure  liberty. 

74 


The  Free  Speech  League,  ( 1 20  Lex- 
ington Ave.,  N.  Y.  City,)  has  in  prepara- 
tion a  statement  of  the  severa_[  constitu- 
tional objections  to  all  "obscenity"  laws; 
also  a  syllabus  of  the  argument  for 
each,  and  citations  to  Mr.  Schroeder's 
more  elaborate  arguments  in  support  of 
those  contentions.  Later,  these  articles 
revised,  and  others  yet  to  be  written  will 
be  published  under  the  title  of  "Ob- 
scene     Literature      and      Constitutional 

Law  " 


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Our  Vanishing  Liberty  of  the  Press,  from  the  Arena, 

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Paternal  Lej^Mslation,  a  study  of  Hberty,     . 

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